
    BIBB, &c. vs. PICKETT, &c.
    
      From the General Court, the Hon. John Trimble and Thomas Montgomery Judges.
    
    
      Bibb, for appellants; Talbot, for appellees.
    Oct. 6.
    An entry calling to lie in the fork of the first fork of Licking, if valid at all, ought to be surveyed at the junction of Hinkston and Stoner, not at the junction of the South & Main Fork of Licking.
   Opinion of the Court, by

Judge Mills.

THE main question in this suit, is the validity of the following entry, which the court below has sustained against an elder grant; and also, whether the survey set up was made by virtue of this entry, or another of the same quantity. The entry reads as follows:

“ April 25, 1780—Holt Richardson enters one thousand acres, in Kentucky, by virtue of a warrant for military service performed by him in the last war, in the fork of the first fork of Licking, to run up each fork for quantity.

The survey set up by the complainants below, as made upon this entry, recites on its face to be made “by virtue of an entry made April 24th, 1780, on a military warrant No. 620.” The appellants accordingly produced another entry, corresponding with the survey in date, which reads thus:

If the junction of the Main & South Forks would fit the calls as well as the junction of Hinkston and Stoner, the entry would, on that account, be void.

The surveyor was required to express in his certificate the rights on which he executed a survey, and this seems to require him to state the entry ; and if he recites an entry by its date, &c. the party will be bound by his recital, unless a mistake is shown & accounted for.

“ April 24th, 1780—Holt Richardson enters one thousand acres, in Kentucky, by virtue of a warrant for military service performed by him in the last war, joining Ben. Johnson’s entry upon Licking; to begin on the upper side of his entry, and running up the creek for quantity.”

It is admitted by the parties, in the pleadings, that this last entry is situated a considerable distance from the land in controversy, and not interfering therewith. It is shown in the cause, that after progressing up the river Licking from its mouth, for many miles, there are no forks or branches, except some of inconsiderable magnitude, until you come to the mouth of the South Fork, which nearly divides the main stream, the South Fork being somewhat the smallest; that after progressing up the South Fork many miles further, that stream is again divided into two large streams, each about ten poles wide; that Licking, at the date of these entries, had its present name; that above the aforesaid junction, the South Fork was distinguished by the name of the South Fork, and the two streams which, by their junction, compose it, were known by the names of Stoner and Hinkston, and that the other fork was distinguished from the South Fork, by the term Bue-Lick Fork, or Main Licking; that the junction of these two streams was called, in common language, then, as it is now, “ Forks of Licking,” and the “ first fork of Licking,” and the junction of Hinkston and Stoner was usually designated by “ Forks of the South Fork of Licking.” Sundry witnesses, being asked where they would have surveyed this entry, answered, in the main forks of Licking, where it is claimed to exist.

It is contended by the appellants, that the junction of Hinkston and Stoner is the proper place for surveying this entry; and by the appellees, that the main fork is the proper place. Whatever names the different forks might be known by at the date of this entry, it is evident the locator did not know these names, or if he did, he meant not to use them; for, in locating the place now claimed, he could have readily said, in the language of the day, in the forks of Licking, or in the main fork of Licking, or in the first fork of Licking, or at the mouth of the South Fork. If he intended the forks of the South Fork, he could have simply said, at the junction of Hinkston and Stoner, or in the fork of the South Fork of Licking. But he has abandoned all these well known names, except that of Licking itself, and intended to rely on description only, to point out the place. The names then attached to these two places, by reputation at that day, do not fortify this entry, nor enable us, in any degree, to ascertain which place he intended. If it be argued, that he would have said the junction of Hinkston and Stoner, or the fork of the South Fork of Licking, had he intended this place, it may be replied, that he would have said, in the forks of Licking; or, in the main fork of Licking, had he intended the latter place.

2 Marsh. 413.

The question then is, has he given us such accurate description, as to let us know which place he intended; or, in other words, is there any thing in the entry which with certainty points out one place, and not the other?

It may be assumed, with certainty, that the stream now called South Licking, was the first fork of Licking, as you ascend the stream, which could by nature and size deserve that appellation; and that this stream had this name by reputation at that day, is sufficiently established. Was there no main fork to this South Fork, to rival the place claimed, we might, with more plausibility, construe the words, “ fork of the first fork of Licking,” to mean the fork composed by this junction. Somewhat similar to this construction, has this court considered the calls in the entry of Halbert, &c. in the case of Haws’ heirs vs. Halbert, &c. and in other cases on the same entry. The words there are, “ at the junction of the fork of Hinkston’s fork, and the first fork emptying into Hinkston on the north side, below the mouth of Flat-Lick creek.” There, a fork or branch of Hinkston’s fork, and another fork emptying into Hinkston on the north side, could not join. Hence the words, “fork of Hinkston’s fork," were construed to mean the fork or branch named Hinkston’s fork. This construction is there adopted, to make good sense of the entry, and to fit it to the only object on the ground to which it could apply; and the facts existing on the ground, in that case, showed that there was a redundance of expression, which created the ambiguity; but, in this case, there is no such difficulty, when applied to the facts on the ground. Every word may be literally true. There is a main and notorious fork of the first fork of Licking. We well know, that not only now, but at the date of making entries in this country, in common or vulgar language, the word, fork, when applied to streams, meant sometimes the point of junction between two water courses, and very often a stream itself, which was the branch of another. Thus we say, Floyd’s Fork, Beech Fork, Rolling Fork, Hinkston’s Fork. This language has incorporated itself, not only into our statutes, but also into our entry books. Numerous instances might be adduced, of entries, from the decisions of this court, where the word fork is understood to mean a stream, instead of the point of union between two streams. A different meaning attached to many entries using this term, would defeat them. In the first sense mentioned, we conceive the locator used the word fork, where it first occurs in this entry. He placed his land in a fork, that is, at the junction formed by the division of a larger stream; and that larger stream, in the second sense above defined, is designated by the first fork of Licking.

Hence we have come to the conclusion, that the junction of Hinkston and Stoner is by nature the fork of the first fork of Licking, where this entry ought to have been surveyed. Put the case, that this entry had been surveyed at that point, and that it was now in controversy there, with elder grants; could we say that the calls of the entry had not been complied with, and that it was not surveyed in the fork of the first fork of Licking; and that, to comply with its calls, it must be moved to the fork composed by the junction of the first fork with Main Licking itself? At all events, it could stand its ground equally well, at the spot where we have supposed it ought to be, as the place where it is surveyed; and if both places fit it equally well, it must be void for uncertainty.

But if we were even mistaken in this construction of the entry, we are not satisfied that the other point relied on by the appellants is untenable. The fact, that the recital of the entry by another date, is a mere mistake of the surveyor, does not so clearly appear in this record. If there was no such entry as was recited, the mistake might be presumed; but there is one which fits in quantity and nature of warrant, and the number of the warrant is omitted in both entries. The testimony of the surveyor was taken, and rejected by the court below, on account of his interest. An exception was taken, which placed his two depositions again in the record. Without reviewing or deciding the question of the competence of his testimony, we have looked into it, and do not discover that he swears that he inserted the wrong entry by mistake. He is positive that he made but one survey, and he further states that he and his partners had bought both entries, before the date of the survey, and that they surveyed but one ; but which one, he does not state.

It has been urged, that this recital was inofficial; that the law did not require such recital, and of course that it proves nothing. We are not disposed to admit that such recital was inofficial. The law directs the surveyor to express “the nature of the warrant and rights on which the survey is made.” The entry is a “ right” which may well be included in these expressions. We would not say that an omission of a surveyor, to recite an entry by date or other description, would be fatal to a claim; but when he does so describe the entry, the party ought to be bound by it, unless the mistake is accounted for. On both grounds, therefore, we consider the claim of the appellees untenable.

The decree must be reversed with costs, and directions given to dissolve the injunction and dismiss the bill with costs.

The Hon. Isham Talbot presented the following petition for a re-hearing:

Impelled by a strong sense of that duty which he owes his clients, and his own firm convictions in relation to their rights involved in the decision pronounced herein, as well as of their utter ruin, which he believes the inevitable result of the decree pronounced against them by your Honors, their counsel, the undersigned, feels himself impelled to solicit, with great respect, a re-hearing of the case. But as not his feelings or opinions, but the reasons he can urge in favor of his application, can give him just claims to success, he will proceed to detail such as have occurred to him.

The locative calls in the entry of Holt Richardson, on the true construction of which the controversy essentially turns, are few and simple, and susceptible of but brief discussion. His entry of 1,000 acres on a military warrant, describes the land intended to be appropriated, as lying “ in the fork of the first fork of Licking, to run up each fork for quantity.” To ascertain the meaning of these expressions, it is essential that they should be considered in connexion with the proofs in the cause; from which, any apparent ambiguity in the meaning of the expression, fork, repeated three times in this entry, as considered in the abstract, and independent of the proofs, it is conceived, will entirely vanish.

The testimony explanatory of the true meaning of the expressions used in this entry, as before alluded to, furnishes at once a key for the easy solution of the difficulties which might occur in considering them in the abstract, and without recurring to this source of explanation. The expressions, to lie “in the fork,” with those which follow, “ to run up each fork for quantity,” are susceptible of no doubt, and in regard to which there can be no difference of opinion. The expression, fork, here evidently indicates the point formed by the junction of two streams. The words, “ in the fork,” and “ to run up each fork for quantity,” indicate as clearly as language can express, not any where, but here, the land appropriated is to lie, and need no further comment.

There remains, then, no ground for contest, in relation to the validity of this entry, but that which results from the expressions, “ the first fork of Licking;” and if the supposed difficulty arising from this call can be surmounted, no difficulty can occur in pronouncing the entry a valid one.

The court, in the opinion pronounced herein, seem to place the stress of their argument on the ambiguity of the expressions here alluded to; the expression, fork, as the court apprehends it, being equally applicable to one of two branches or prongs of a main stream, as to that point formed by the union of such branches or prongs of the principal stream. In the common parlance of the country, this may be so, and yet, as your petitioners respectfully contend, no argument be furnished thereby, detrimental to their claim; because this expression, as used in the entry where it first occurs, “ in the fork” is shown to have a clear, definite and unquestionable meaning in relation to the use of this word; that is, to indicate the point of union of two streams, and not to designate one of those streams. Upon what principle of construction, or in conformity with what rule of grammar, is it that this same expression, immediately recurring, with only three monosyllables intervening, shall be understood in a different sense, and indicating an entirely different object, that is, the South Fork of Licking, and not the point of junction, so clearly and unequivocally indicated by the expression where it first occurs?

Such construction, so far from being required by the rules of construction adopted by courts of justice, or those of grammar, as these rules are understood by the counsel, is repelled and forbid by both. Technical words and phrases, when used in deeds and other instruments, are to receive always an uniform construction, although by such construction the intention of the party using them is manifestly violated ; and expressions employed in an instrument like the present, by the unlearned, and to which, when first introduced, the party has affixed an unequivocal meaning, almost immediately recurring, as in the present case, should, upon every principle of common sense and fair construction, as it would seem to the counsel, be understood as conveying the same idea, or having relation to the same object.

If these observations, abstracted from the testimony in the present case, are entitled to consideration, what additional force must they not acquire, when considered in connexion with the evidence in the case? This testimony, all concurring, almost with entire unanimity, to give to the expressions in this entry the meaning which, reasoning upon the principles of construction and the established rules of grammar, I have assigned them. That this parol evidence of witnesses is entitled to much weight in cases of doubtful construction, (if such were even the case here,) the authorities are abundant, and the reasons on which such decisions are bottomed, convincing and satisfactory.

Such instruments as the present being designed in general for the inspection and use of the unlearned hunter and hardy adventurer, when they are understood by persons of this class, with almost entire uniformity, to convey a particular idea, and to lead to and appropriate a particular spot of land, is it not unjust, as it is in contravention of the manifest intention of the party, by ingenious or refined speculations to contravene his intions, and by nice criticisms and artificial reasonings to condemn a claim of which those for whose benefit the location was made, entertained no serious doubts?

To ascertain whether the supposed ambiguity in relation to the ideas conveyed by the expressions, "first fork of Licking,” and whether these words should be understood to refer to the point of junction where the entry has been surveyed, or to the stream called the South Fork, it would seem that the difficulty might be solved at once, by the inquiry whether the South Fork of Licking would be understood to be intended and referred to; or, in other words, whether any reasonable number of persons would have been misled, by going to the junction of Stoner and Hinkston, in search of these calls? A candid review of the evidence, with a view to the solution of this question, it is believed, would solve all doubt; for the counsel who presents this petition is firmly persuaded, that neither the testimony in the cause, nor even a full examination of all those who were conversant with this part of the country, would furnish evidence that any hunter, explorer of the country, or other human being, ever called or knew this, the South Fork of Licking, by the name of the first fork of Licking; and yet it is on the supposition that it might have been so called, that the ambiguity which has been decided fatal to this entry, is made to exist. Surely, then, it deserves serious re-consideration, whether an entry which, to the mind of the unlettered hunter and locator, for whom, and for whose benefit and information, it was directed by law to be made, conveyed, with sufficient precision, the requisite information, and pointed, with sufficient certainty, to the first fork or main fork of Licking, should, by a train of artificial reasoning, be made, at the present day, to convey the idea of the South prong or fork of Licking, by which name such South fork was never

In another point of view, (and indeed in any other view but the most rigorous,) it would seem to the counsel the entry ought to be sustained. The expressions, “fork of the,” considered as tautologous, leave no ground for criticism the most rigorous, to assail the entry. It would then read, “ to lie in the first fork of Licking, extending up each for quantity.” What forbids this? Is it the rule, so early introduced into our system, and, until recently, applied with so much uniformity and with such general satisfaction to the bar and to the country? Was not this rule of grammar, as well as of law, that in construing instruments tautologous expressions may and ought to be rejected, applied, and happily and properly applied, in the case quoted and commented on in the opinion in the present case, that of Halbert, &c.’s entry, in which, not only similar expressions, but almost the identical expressions above alluded to, were rejected as tautologous in that entry; the retention of which expressions rendered that entry entirely impracticable to be complied with, as well as absurd and nonsensical? The retention of them in the present case, is only the source of ambiguity.

But the court, in the opinion pronounced in this case, have not only pronounced sentence of condemnation on the entry in question, but have decided that the misrecital of the date of the entry in the certificate of survey on which the patent has issued to the complainants, is fatal to their claim. This opinion, and the principle introduced thereby into our system of jurisprudence in relation to adversary rights to land, with every respect which it is the duty as well as the disposition of the counsel to bestow on decisions of this court, are, it is conceived, as novel as pernicious and destructive to the just rights of parties litigant. Upon general principles of justice, policy and propriety, can or ought the acts of a ministerial officer, a public agent of the government, appointed to do an act essential to the perfection of my inchoate right, granted for a valuable and ample consideration, by committing a mistake in making out a certificate of survey, over which the owner has no power or control, to forfeit and destroy the right of the owner, who is guilty of no fault or neglect, of commission or omission, whatever? And could the legislature, in framing the regulations for the government of surveyors in making out their certificates of survey, have intended or supposed that mistakes of these officers, the most entirely innocent, should be attended with such fatal consequences to an owner entirely free himself from fault, neglect, or even of mistake? Surely not. Such injustice cannot be fairly predicated of a legislature, by this and other similar provisions compensating the soldiers of her country for their hazards, their treasure, and their blood, expended in its defence.

The requisitions of the section in question, in relation to plats and certificates of survey, seem to be clearly and evidently directory only, and not of imperious or necessary obligation, so as to render an absence or mistake of any one of them fatal to the certificate itself, as well as destructive of the whole claim. For if the latter had been intended; if, for the unintentional, and, in some degree, an unavoidable fault of another, a mere mistake of a single word on the part of a surveyor, the legislature had intended to forfeit and destroy the claim and title of the owner of the entry, would they not have said so? Would they not have given an intimation in some part of their enaction, that such was their intention? Is not, then, a decree which declares an entry or claim forfeited, for an omission to recite, or a mistaken recital of any one of those things required to be stated, carrying the doctrine of forfeiture further than a fair interpretation of this act, on the benign principle which is applicable to forfeitures, will warrant?

The opinion delivered in this case truly recites that the act requires the surveyor to state in the certificate of survey, “ the warrant and other rights” on which such survey is founded. The question first to be settled, is, what did the legislature intend by the expressions, and other rights, contained in this provision? Did they mean some other original right or title, on which the claim was or might have been founded; such as an order in council, entry on the council books, or proclamation rights, all recognized as valid foundations of legitimate claims, provided for by the land law of 1779? Or did they mean that the surveyor should state, not only the warrant, the sole foundation of the right in the present case, and the entry founded on such warrant, when the entry is only one progressive step, taken by the owner of such warrant, towards the consummation of such right? Surely not the latter; because the entry is not the right, but one step towards its perfection, and because the expressions, “ and other rights,” may be fully satisfied, without a recital of the entry, as shown above. But admitting, for argument’s sake, that the entry must be recited, because the law requires a statement of the warrant and other rights, is it a just or legitimate conclusion, that the date of such entry should also be recited? And is an omission to recite such date, a fatal defect in such certificate of survey? Not unless we add to, or interpolate such provision in the act, for the purpose of working a forfeiture. And if the omission of the date of such entry altogether, is not fatal, how can it be contended that a variance of a single day, or any other mistake in the date of such entry, can be held fatal to the claim? Nor is it perceived by the undersigned, how the existence of another entry, in a different section of country, or different neighborhood, can vary the question. All that the law, by a sound construction of its various provisions, seems to require, is, that the party claiming under such entry; and all that the decisions of this court seem, heretofore, ever to have required, is, a good and valid entry, a survey made in conformity with such entry, and that carried into final and complete title by grant.

In conformity with this train of reasoning, has been the practice of surveyors in every period of the history of the land titles in the country, sanctioned by the decisions of this, as well as the other tribunals of the country. As regards the practice of surveyors, it is believed, the certificates of survey greatly varied in this particular. In some cases, they recited the nature of the warrant, whether military, treasury or pre-emption warrant; sometimes adding, sometimes omitting the number of such warrant; sometimes omitting the warrant altogether, and reciting the entry only, with its date.

And it is asked with confidence, in which case it has ever been decided that any of these modes of recital, various as they are, have been so erroneous and defective, as to be fatal to the claim? It is believed that no such case can be found. If it is essential and indispensable, as the court assume in the opinion in the present case, to recite, not only the warrant, which is the right, but the entry and its date, what would be the fate of such surveys as recite the entry only, without the warrant, and there are believed to be thousands such? And must not such omission in all cases be fatal?

I. TALBOT, Attorney for Appellees.

All which is respectfully submitted, by

But, on the 10th day of December 1821, the petition was overruled.  