
    BARNETS LESSEE vs. RUSSEL & OTHERS.
    
      NASHVILLE,
    Nov. 1808.
    Locality of entries.
    
      Ejectment, plea not guilty, and issue as usual.
    The plaintiff had the oldest grant, upon which he relied, without producing an entry. His boundaries were identified. To overreach the grant of the plaintiff, the defendant produced an entry of a presumption No. 333, dated March 3d 1784, which was older than the plaintiff’s grant; in these words “ the heirs of Roger Topp assignee of Joseph Denton enters 640 acres of land lying on the south side of Cumberland river, on the third big creek above stones river, about two miles from the mouth of said creek including an improvement, and marked on a tree not said spring W. O. beginning one quarter of a mile north east of said spring, running south and west.”
    As the testimony is referred to in the arguments of counsel, it were needless to repeat it.
    
      White, Dickinson, Lavies & Grundy for the plaintiff.
    
      We rely upon our grant, and the defendants must show that their entry is special, and covers the ground they claim ; if they fail in this we must recover. William Overall made the location. Barton and Buchanon went with Overall to show the place so that Buchanon, who was a surveyor, might survey it.
    The great dispute in this case is, which, of the two springs, was the place called for in the defendant's entry.
    There is proof of an upper and lower spring, on this creek ; we say the upper spring, now claimed by Conrad, is the place located by the defendants, and if so, there they ought to make their claim, and then there could not be any interference. The upper spring, is between five and six miles, and the lower, between three and four miles from Cumberland river.
    The lower, is the spring we claim, and where our land was surveyed. The lower, is about sixty yards, and the upper, about a quarter of a mile from the creek. There is great difference in the springs, as to their size, situation &c. so that no person could mistake one for the other. But to proceed with a view of the evidence, which we insist shows satisfactorily, that the defendants' entry was made for the upper sping, and not for the lower, which we claim. When Buchanon was out, in order to survey the defendant’s entry, in company with the locator, and Barton ; and perhaps Rains the guardian of Topp the heir of R. Topp, they were first at the upper, or Conrad’s spring ; the locator said, that was not the place, nor did he claim our spring, which they were also at.
    Buchanon came away, and left him, looking for the spring.
    It will be however recollected, that Buchanon had previously surveyed some claims which called to adjoin the defendant’s entry, near this place. Kilgore, had a guard right of 800 acres, the entry of which was made January the 26th 1784, on Barton’s creek, as now called, being the same on which the land in dispute is situated, "beginning on Roger Topp’s upper line, and running up the creek on both sides.
    
      It is true, this entry was made before Topp’s, but it could well call to adjoin it, as all the preemptioners, had obtained certificates from the commissioners, before any entries at all were made. Kilgore’s entry has long since been established, surveyed, and granted. It was surveyed, leaving room for Topp’s at the upper spring. Overall and Flinn are both dead, but Barton says Overall told him, that Flinn was with him, when he made the improvement, and marks at the spring. We have Flinn's voluntary affidavit, which has been read as his declaration, being dead, and the transaction of long standing. He, or some other witnesses, tell us, that he made Kilgore’s improvement; and Flinn positively tells us, that the upper spring is the one called for by Topp's entry. Kilgore calls to adjoin it at that place, which of itself forms an irresisable presumption, that it was the understanding of that day, that the upper spring was the place intended.
    J. Payton says, that Overall told him in his life time, in the year 1783, the upper spring was the place he located for Topp ; and it is probable it would have been still claimed for him, if Conrad had not obtained it. Payton always understood so, and so did Buchanon previous to Overall’s going out with him. Payton saw marks at the upper spring, in early times, but does not recollect what they were.
    There was not a single witness, who has proved marks at the lower spring. He also says, that captain Bowen, who is now dead, told him that Topp and himself, had made an improvement at a spring, about three quarters of a mile from a big pond, mentioning the course from the pond. He inquired of Barton for the pond, who told him where it was ; he found it, and agreeably to Bartons directions, went the course from the pond Bowen had told him, and came to the lower spring, where he saw some trees chopped, but no marks.
    Bowen was with him at the spring, and said it was the place Fowler had improved. In early times, as Fowler had told him ; though Bowen was not at the spring, but lay in camp on the other side of the creek. S. Williams, who surveyed our land, says, that he found no marks at the spring. He saw the white oaktrees, which had been shopped with a knife, or tomahawk.
    The argument, that entries need not be as special here, as in Virginia, was idle. Entries, there, as well as here, were intended for the same purpose ; to give notice to others of the appropriation of the land. It must contain sufficient certainty, to do this; and certainly was the same every where.
    It is urged, that by a rational construction of the defendants’ entry, that as the tract must necessarily lie on both sides of the creek, the spring must be near the creek. This might be the case with respect to 640 acres, or any small tract, but how would the argument apply, if it were 2000 acres ? The law being the same, it must apply in a large, as well as a small tract.
    It is of great importance that the principles of law, with respect to entries, should be settled, and if possible, ascertained. As matters were hitherto, no man had any clue, from which he could tell, whether his claim were good or not; and can only make an experiment, at the expence of perhaps four or five hundred dollars.
    Surely, the only possible construction that can be given to our law respecting entries, is, that it should contain sufficient certainty to give others notice of the spot called for in it, so that they may know how to avoid it, and enter in safety adjoining. Nothing else could have been intended. We have understood, that this for some years back, was the opinion of the courts respecting entries ; and why should it not continue so. Mens rights would then have some foundation to stand on ; Now they have none. The entry of the defendants, is uncertain and vague. Pre-emption claims, ought not to be encouraged. Most of them, were obtained in fraud of the law, which required particular kinds of improvements ; when it is well known, that the greater part of them. were obtained without any improvement at all. Ours is a military claim, theirs a pre-emption.
    In relation to the mode of surveying, it is urged, that the oldest entry ought to be first surveyed.—Suppose the youngest should be first surveyed (which we think would be legal) would the grant be void No. The act of 1786. C. 20 only says, it shall be void if obtained in fraud of an elder entry. It cannot be seen, why more favor should be shown to elder, than younger entries. It is not material to society, which holds.
    The profit, or loss to the public is the same, whether one man holds, or another. But we insist, that a younger innocent enterer, should be preferred to a person claiming under an older vague one ; the calls of which are so uncertain, that no person could ascertain its locality.
    Sharpe, Haywood and Whiteside, for the defendants.
    The plaintiff, has not produced an entry, we cannot therefore suppose that he ever had one. That which is not proved, cannot be presumed. It appears from the testimony, that when Buchanon came away, and left Rains and Overall looking for the spring. Overall, afterwards, as he said, found the marks at the lower spring, and said that was the place in consequence of which it was surveyed for Topp. Mr. Harpole tells us, that Bowen in his life time, told him, the spring at which he lives, a small distance from the lower one, was the place Fowler improved, which completely removes all weight from what Bowen told Payton. What Overall the locator himself stated, is superior to all the testimony of the plaintiff, put together.
    Our entry is special. It has been insisted that an entry should be so special, that it will give notice to others, in such a manner, that they may know how to take up the adjacent lands in safety. From whence is this position derived ? From the language, or fair interpretation of the statute of Nov. 1777. C. 1. S. 5.
    
    This section requires that the person making the entry, shall state remarkable places, water courses, or lines of others. It surely will not be contended, that if all these calls were not in an entry, that it should be void. Some of them perhaps could not be found at, or near the place.
    The true principle of law is, that the entry should contain so much specialty, as would be sufficient to put others on inquiry ; and enable them to find the place. Does our entry disclose facts sufficient for this purpose? We must presume it does. It calls for objects of notoriety, as
    1st. The third creek above Stones river, on the south side of Cumberland river.
    2d. About two miles from the mouth of the creek.
    3rd. A spring, with its description.
    The difficulties and dangers, that surrounded the first adventurers of this country ought to be taken into consideration, in the construction of entries.—The few people then in the country, had it not in their power to explore it so accurately, as it has since been done ; in a full state of population and freedom from danger of savages.
    The entry, however, would be special at this day. It calls to lie on the creek, therefore the spring must be near it, as by a fair construction, the land must lie on both sides of the creek, it, was not intended that the distance above the mouth of the creek should be exactly described, the words of the entry do not import that. It was not to be expected, that locaters measured the ground. The spring we claim, is sufficiently near in that respect, other facts disclosed, show, that it must have been the lower, and not the upper spring ; besides, the distance answering better. If you take the upper spring, it would lie in one corner of the tract, and the land not on both sides of the creek, which the entry surely means.
    In construing an entry, it is not a fair interpretation to select one particular call of it, and if that fails, all shall with it. It should be taken altogether, and if any one notorious call, shall be established, it is sufficient.
    Entries, much more vague than this, have been supported, and if this is not, but few will. Burn's Lessee vs. Hays.
    
    The act of 1786. C. 20, which speaks of special entries does not define what shall be so considered. The 5th section of November 1777. C. 1. must be recurred to, and that says nothing about a special entry.
    We are left then to inquire into the nature of a special entry, by considering what the legislature had in view, in requiring an entry. From the situation of things, the legislature never could have designed, that an entry should contain that technical certainty, for which the counsel of the plaintiff contend. Scarcely one in a hundred, would stand the test. The defendants’ entry being the oldest, the plaintiff ought first to have seen it run out.
    He had a preference in getting it surveyed.
    Mr. Haywood rose, and said, they had just discovered a witness, who was with Overall when he made the letters called for at the spring, and could prove it. He desired permission to introduce him.
    
      Overton J. Stopping the counsel on the other side observed, that the witness could not now be introduced. It had often been decided, that after the arguments were opened, no witness could be brought forward. In fact, after a witness has been discharged from his examination, in the course of regular practice, he cannot be examined afterwards. The courts, however, frequently permit it, as the counsel may have omitted some material question.
    The court will however know, before the witness is re examined, what the question intended to be asked is : so that it can see it was an omission ; and the examination not designedly kept back, for the purpose of seeing where the testimony pinched on the other side. No instance to his knowledge, had ever occurred, where a witness had been examined after arguments commenced.
    In practice, calling back witnesses after being examined, had proceeded great length ; it should be avoided as much as possible. The discovery of testimony alluded to by the defendents counsel, may be a ground for a new trial, but it would tend to introduce too much confusion and disorder in the practice to permit its introduction. Besides, it will encourage perjury ; for if we permit it at one part of the argument, we may at another ; and before the closing of it, a party might see, where the weak place of his cause was ; and in that case be prepared with a witness to support it. It is not however intended to suggest a suspicion that any such thing is in view in this case ; far from it, but it would be the tendency of such a practice.
    
      Haywood was proceeding, when he was stopped by Humphreys J. who said, that he could see no difference, between admitting the witness now, and upon another trial, which the defendant would be entitled to, upon disclosing the discovery and materiality of the witness. He might then supply a weak place in his cause as well as now, nay better, for there would be more time. Justice requires that we should hear his testimony at some stage of the, controversy, and he thought it was saving time and attaining the ends of justice to do it at once.
    Haywood, then argued at considerable length, in favor of the introduction of the witness, and per.
    
      Powel J. It would be contravening the rules of practice to introduce this witness now, and might be attended with inconvenient consequences.
    He must stand aside.
   Per Curiam.

The uncertainty, in which the principles of our land law are involved, is certainly a subject of much regret. It has no doubt, originated in some degree, from the circumstance of going beyond the grant in the trial of ejectment.

The acts of the Legislature in Ird. 368, 385, 448, 483, 589, show clearly their design, that a preference should be given to the oldest entries in making surveys ; that there should not be interference, is obvious from the 10th Section of the act of November 1777, c. 1, and the 7th Section of the act of 1779, c. 4.

Since questions under the land laws frequently occur, and are earnestly contested, let us inquire, what was the cotemporaneous construction of these acts. In early times, we have but few judicial decisions, to which we can advert ; but we can easily discern what was the consideration, and view of society on the subject optimus iuterpres legum consuetudo.

As it was the interest of individuals to inform themselves of the provisions of the land law, all classes being in the habit of taking up land, it would seem, that the practice which obtained soon after the passage of the acts, ought not to be entirely overlooked. It is not understood, that erroneous impressions of law, shall govern the courts, however general, in all cases ; but when the rights of individuals, and the rules of property, become ingrafted on any general practice, long acquiesced in, it cannot be lightly set aside. In cases, which would be doubtful on the law, such practice makes the law: And then the maxim applies, communis error facit jus.

Surveyors, who necessarily must be a numerous class of persons, were the most efficient officers of government in carrying the provisions of the land law into effect.

Their practice has been, to consider the oldest entry as having the preference in surveying, and that they had a discretion, unless the calls of an entry opposed it, or unles confined by lines of older claims, to run in a square or oblong ; and then survey the adjoining entries, so as not to interfere. But as to surveying the oldest entry first, the acts of 1786, c. 20, 1787, c. 23 are legislative declarations of the previous law ; & the court has no doubt, but that view of the preexisting laws, was correct. This being the law, suppose a surveyor surveys a younger entry before an older one, will the situation of the elder enterer be deteriorated ? it certainly will not.

He should be in no worse situation than if the surveyor had complied with the injunction of the law, in surveying, his, first. That which ought to have been done, is in equity considered as done. Coup. 467, 2 Pow. Cont. 56, 58, 59, and the court will consider it in the same point of view. It is nothing but justice, it should be so considered ; for the person owning the elder entry, should not be deprived of rights, which the law conferred, by the act of a surveyor, (in surveying the youngest first) over which he did not possess any control. The law was so considered in the case of Hocket vs. M’Crory. He thought to hold the same land, he would have held, had the surveyor done his duty, in surveying the oldest first ; and not interfered with any person. And it is at matter of consolation to reflect, that such a system as this, is calculated, rather to prevent disputes, than generate them, by cutting, squaring, and carving. Every man must know if there is an older entry, the younger must stand aside, till that is surveyed ; if any is left he takes it, and what is wanting, the law allows him to locate elsewhere. For the right of locating elsewhere, see April 1784, c. 14, s. 7, Oct. 1784 c. 19, s. 6, 1786, c. 20, s. 7, 1789, c. 3. Acts of North Carolina 1796, c. 19, 1802, c. 17. Acts Ten. 1801, c. 2, s. 3, 1806, c. 1, s. 25, 26, 27, 1807, c. 2, s. 6. 7.

And for twenty years, these have been the principles, upon which our courts and juries have acted. Sapientissima res tempus, is one of Lord Bacon’s aphorisms.

The legislature has not specified the qualities of an entry, nor what certainty it shall contain ; we are left to presume such principles as will best answer the ends of justice, and attain the views of the legislature. The acts of 1777 c. 1. s. 5 and. 1783, c. 2, s. 11, are the only two, that can give us any light, and what they give is very imperfect. It is not necessary as contended, that an entry should contain so much certainty, as to boundary, that others must know, when making an entry previous to a survey of the first, how to adjoin it. That would be so precise and technical a certainty, that nothing but a recorded survey could create This is the view that society at large, and our courts, have formerly entertained of the design of an entry.

The Legislature might have required the most precise certainty, and have so expressed itself, there is no doubt, and if it had, we should be obliged to conform to it, but it has not done so, nor did the situation of the country at the time those laws were passed warrant us in thinking that it intended it. The country was unexplored and dangerous. All the law required, in an entry, was certainty to a common intent. That is, in the common understanding of men, the entry should in some part of it contain a reference to some place, natural mark, or thing, which from them, either singly, or together, could be ascertained with reasonable industry by those acquainted in its neighbourhood.

Entries were not made by professional men, but the common people. Such a construction should be put on them as will enable comment persons to understand the place meant. Coup. 682. Impossibilities, or that which is unreasonable, is never required in law.

Bringing these principles to bear on the case before us, let us examine the entry of the defendant. It has five calls:

1st. It is to lie on the third creek, on the south side of Cumberland river, above Stones river.

2d. About 2 miles above the mouth of that creek.

3d. It is to include a spring.

4th. An improvement at the spring.

5th. A tree marked with the letters W. O at the spring.

This entry in itself contains no such uncertainty as the plaintiff’s counsel contend it does.

The first call is partially directory ; it does not however ascertain the spot, in as much as creeks are frequently many miles in length, and so the entry considers this creek, for the second call states it to be about two miles above the mouth of the creek.

The entry so far, is only directory, but not specific.

The next, or 3d call, still does not attain precise certainty as it was customary in those days, to make improvements at many lasting springs. It may be that our law gives validity to the elder entry if it fit one of two places, alike situated. On this point, no opinion is given. In the 4th call, we approach nearer specialty to every intent, but not yet attained, because there are several springs, about that distance from the mouth of the creek, and the entry in the absence of other locative calls, ought to contain some description, by which it might be distinguished from other springs, in that neighborhood; as there were many, there is abundant evidence in the present controversy to prove.

If the situation of things had been such, that there had been but one spring, in that quarter, so that it could net have been mistaken, it would be a different consideration. It hence results, that without the 5th and last call, the entry would in itself be essentially defective; having no other locative call but the marks at the spring, with this call it is intrinsically sufficient, but may be void by matter dehors ; as that there were no such marks at the spring, as the entry calls for.

Without proof of such marks there, previous to the entry being made, it cannot be seen, how it can prevail against the plaintiff’s grant.

It has been urged, that preemptioners frequently obtained claims, not having made the improvements the law required. Whether entitled, or not, can never be an inquiry with a court of law or equity.—The proceedings of the commissioners, in this respect, were final.

Juror withdrawn, mistrial. 
      
      
         Judge Rones opinion 1 call, 209.
     