
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    BAIRD AND KENNEDY v. TRIMBLE’S LESSEE.
    
      \ V Appeal. )
    To make an entry good it must call for some object notorious at tbe time the entry was made, or which had become so before the inception of the conflicting claim. [ Acc. Simms’s Lessee v. Dickson, Cooke, 13V; McMillan v. Claxton, 4 Hay. 279, citing this case.]
    If an object is notorious by two names, a call for it by either will be sufficient. [See Mitchel v. Barry, 4 Hay. 141.]
    This was an action of ejectment, commenced in the Maury Circuit Court, to recover possession of a tract of land.
    A verdict and judgment being had against the appellants, a hill of exceptions was taken to the opinion of the Circuit Court, and an appeal prayed and obtained. The bill of exceptions, which sets out all the evidence in the cause, as well as the various opinions of the circuit judge, in substance states “That the plaintiff gave in evidence a grant from the State of Tennessee to Trimble for the land in question, dated the eighth June, 1808.”
    The defendants then gave in evidence a grant from the State of North Carolina to Thomas Polk for the same land, dated the 10th day of July, 1785.
    As the lines and corners of both their grants were well established, the plaintiff, to obviate the effect of the grant to Polk, introduced as evidence an entry on which the grant to Trimble is founded, in the following words and figures, to wit: —
    “1605, April 2d, 1784. John Hardin enters 5,000 acres, lying on the south side of the land reserved for the continental line, beginning at the twelve mile tree, running thence east with said line, two miles arid a half; thence south for complement, including Hardin’s Creek, in Green County.”
    Thomas Wright, a witness sworn for the plaintiffs, proved that when the commissioners run the continental line, in February, 1784, he was with them; that part of the commissioners and guards began at Mount Pisgah and run west, and that another part began at the same place and run east, each party marking a mile-tree at the end of every mile. He also proved that he went with the commissioners who run west, and that as they proceeded on they entered a large cane-brake, and that near the west end of it was a creek called Hardin’s Creek generally amongst his comrades and mess, which consisted of four or five persons. He did not hear it called Carter’s Creek. John Hardin was with the commissioners when the line was run, and gave the creek the name of Hardin’s Creek. There were about sixty persons in company, and he did not know that the creek was called Hardin’s Creek in any other mess.
    Frazier, another witness for the plaintiffs, who did not belong to the mess of Wright, stated he heard it generally called Hardin’s Creek by his comrades, consisting of ten or twelve persons. He never heard it called Carter’s Creek.
    The defendants then gave in evidence a grant from North Carolina to Benjamin Carter, purporting to be founded on an entry made the 27th day of April, 1784, for five thousand acres of land lying on Carter’s Creek, and it was admitted by the counsel for the plaintiffs that the creek called Carter’s Creek, in Carter’s grant, is the creek in question.
    Henry Rutherford, a witness for the defendants, stated that he was also along when the line was run, and that he generally heard the creek called Carter’s Creek. He never heard it called Hardin’s Creek until very lately.
    John Tate stated that he was a chain carrier with the commissioners in 1784. The creek in question was called generally Carter’s Creek, and he never heard it called by any other name. William Polk said he had a warrant of Captain Benjamin Carter’s, which he would lay on that creek; this occasioned the name to be given to it. He kept a journal, in which he set down the names of the creeks, as did also Ezekiel Polk, in both of which the creek was called Carter’s Creek. He also stated that on his return from the Tennessee, a few weeks afterwards, with five or six other persons, this creek was by them called Carter’s Creek.
    Ephraim M’Clain, Jr. deposed that he was acquainted with the creek in 1785, and it was then called Carter’s Creek, which name it yet retains.
    Ephraim M’Clain, Sr. deposed that he was with the commissioners in 1784, and the creek was then called Carter’s Creek, and, to his knowledge, by no other name.
    Ezekiel Polk deposed that he was with the commissioners in 1784. When they came to the creek in question, while they were marking the eleven-mile tree on its bank, a considerable part of the company standing around, William Polk said he would lay Carter’s warrant there, and it was then said, “We will call the creek Carter’s Creek” ; and that night he set it down in his journal by that name. Tate was on horseback, and entered the name on his journal also.
    The journal was then produced in Court, and proved the fact to be as stated.
    The plaintiffs’ counsel then introduced, as evidence, copies of sundry entries calling the creek Hardin’s Creek, some of them made on the same day that Plardin’s was made and some a few days after; but all of them before the date of Polk’s grant.
    Bradley, a witness for the plaintiffs, deposed that he was with the commissioners in 1784, and that he then heard it called Hardin’s Creek generally, and never by another name.
    John Hibbets deposed that he was along when the line was run in 1784, and that the creeks were generally named after the oldest men in company, and that John Hardin was an elderly man ; from this circumstance he believed there was a creek called Hardin’s Creek. He had frequent opportunities of seeing Tate’s journal, but he does not recollect to have seen the name of either Hardin or Carter’s Creek mentioned in it.
    Robert Heaton deposed that he was acquainted with the country at the twelve-mile tree, east of Mount Pisgah. That laying of five thousand acres, beginning at this tree and running the courses and distances called for by Hardin’s entry, Big Harpeth would cross the western boundary, Overalls Creek the northern boundary, and the head of Panther Creek would cross the south boundary.
    Big Harpeth, Overalls Creek, and Panther Creek were notorious by those names when Hardin’s entry was made.
    The counsel for the defendants excepted to that part of the evidence which went to state that Hardin was along when the line was run; to that part of the evidence going to prove that other entries had been made calling the creek Hardin’s Creek; to that part of the evidence of Heaton which stated his knowledge of the country at the eastern twelve-mile tree.
    
      The Court overruled the exceptions to the evidence, and decided that the testimony was admissible.
    The counsel for the defendant requested the Judge to instruct the jury,
    1. That they ought to place no reliance upon any statement as having been made by Hardin as to the name of the creek.
    2. That an entry is not good calling for a twelve-mile tree, if there be two.
    3. That an entry is not good calling for a watercourse by name, unless that name be notorious.
    4. That calling it by a name in the presence of four or five persons in one mess, and four or five in another, when it did not retain that name afterwards, does not render it notorious, if by a larger number it was known by a different name.
    5. That calling it by a name not notorious, without any other certain description, will not make the entry a good one.
    As to the points on which the Judge was required to instruct the jury, he did not instruct them specially on each point, but informed them generally that, by the laws and practice of this State, the entry in which a grant is founded may be given in evidence in a court of law, and if the entry be special and in conformity with the law, for the same land covered by the grant, that the right and title of the party will be considered as commencing from the date of the entry. That the plaintiff having produced an entry dated 2d April, 1784, of a date prior to that of the grant under which the defendant claims, has, in law, the best title to the land in dispute, if his entry be special for the same land; and that this was the principal point for the consideration of the jury. It was then stated to them what made a special entry, — that it ought to have the requisition stated in the Act of 1783, § 11, ch. 2, “ the claimant shall produce (and so forth).” That in decisions made at an early period, the parties were only required to prove identity; but by the decisions made since that time, it is necessary to constitute a special entry, that the objects therein called for must possess such a degree of notoriety, or be so described therein as that others, by reasonable inquiry, could ascertain the land intended to be entered. The jury was then directed to take the entry, accompanied with the evidence, and compare it with the law, taking all the calls together, and inquire whether the entry be special for the same land called for in the grant; that is, whether the objects have such a degree of notoriety, or are so described, that others by reasonable inquiry could ascertain the land intended to be entered. That the Constitution prohibited the Court from charging the jury as to the matters of fact. The jury are to decide what facts are proved, or may with propriety be inferred from the evidence. The Judge then stated that in an inquiry respecting the name of the creek (Hardin’s or Carter’s), any evidence respecting the name- or notoriety of the same, down to the period when the entry was made, was competent to go to the jury, from whatever source it may have been derived, even if it was derived from Hardin, Polk, Kerkindale, or any other person; that the evidence respecting the creek at any time after the entry was made,' whether by parole or records, was not to be considered by the jury as direct proof of facts on either side, but only as corroborative testimony. It was also stated to the jury that if the entry, taking all the calls together, would fit two or more places equally well, it should not be considered a special entry; and to enable them to determine that point, which was insisted on in this cause, that all the evidence given respecting two twelve-mile trees, the watercourses adjacent thereto, and the notoriety of the names of those watercourses, was competent evidence to be left to them. The counsel for the defendants excepted to these directions, both because they were not specially responsive to the special points made, and because the same were not warranted by the laws of the State.
    A motion was also made for a new trial, which was overruled by the Circuit Court.
    The cause was argued in this Court by Whiteside, Haywood, and Gooke, for the appellants ; and by Dickinson and Hayes, for the appellee.
   White, J.

delivered the following opinion of the Court: —

In the adjudication of this cause, three questions arise : 1. Whether the Circuit Court received evidence which, by the rules of law, ought to have been excluded ? 2. Whether any error was committed in charging the jury ? 3. Whether there is error in overruling the motion for a new trial ?

1. To form an opinion whether the testimony deemed exceptionable ought to have been received, it is essential to understand what is necessary in an entry to enable the person who has a grant founded on it to hold the land against another who has an elder grant.

It is conceived that the entry must call for objects at the place claimed, which, either at the time of making the entry, or before the inception of the conflicting claim, are so notorious as to enable any person acquainted with the land claimed, to know the place intended by the enterer; or he must so describe the place by reference to objects that are thus notorious, as will enable a man by using reasonable industry, to ascertain the land intended to be appropriated. The calls of this entry are: South side of the continental line,” beginning “ at the twelve-mile tree and running east with said line two and one half miles; thence south for complement including Hardin’s Creek.” There can be no doubt but this entry on the face of it is sufficiently descriptive; provided the objects called for exist, and were so notorious as to afford the subsequent appropriator information that this was the place intended to be covered by it. Whether this was the place intended, or the objects called for were sufficiently notorious, can only be ascertained by testimony dehors the entry. When we recur to this evidence, it must be to establish two points; first, the identity of the place intended; next, the notoriety of the objects called for. In this case it is evident the enterer intended to appropriate five thousand acres of land, lying on the continental line, and on the south side of it; and it is equally clear that the continental line was a call sufficiently notorious to point out the part of the State in which the land was to lie; yet as this line was many miles in extent, we do not know at what precise place on the south side of it, the enterer intended this five thousand acres should be. We then proceed: “The twelve-mile tree, running thence two and a half miles east with the line; then south, including Hardin’s Creek.” What place then did the enterer intend when he spoke of the twelve-mile tree and Hardin’s Creek? To enable a court and jury to answer this question, we cannot say it was improper to hear the evidence which went to show that Hardin was along when the line was run, the tree marked, and the creek named; and that soon afterwards he left the party. It rather seems that these circumstances ought to have some influence in forming an opinion that the creek and the tree were the ones he intended to speak of in his entry. Still, it will remain to inquire whether these objects were sufficiently notorious to point out to others, that this was' the place he intended. When inquiring into this point, it seems to us that everything which was said could be given in evidence relative to the name by which Hardin or any other person called this creek. Who gave the name is unimportant; it might as well be given by the enterer as any other person. He had not only a right to give the name, but the more industry and care he made use of to cause the name to become public, before others attempted to acquire an interest in the land, the better; watercourses and other objects called for in entries, are most generally first named by those making the first entries calling for them; and if by any means — even means used by the first enterers themselves — these objects became generally known, by the names thus given, the subsequent enterer is in no worse situation than if the name had been given by any other person. In either ease the information is offered him which our laws require. Upon the same principle likewise, it is conceived that the copies of the entries which were read, were proper evidence; they call for this creek hy the name of Hardin’s Creek; each of these entries was made prior to the commencement of the title under which Kennedy and Baird claim, calling for the creek by the name of Hardin’s Creek ; and is a proof at least that those making these entries knew the creek by this name. Using the name in entries certainly would have a tendency to make the creek notorious by this name. It then seems to us that all the evidence which was received was admissible; either to show the identity of the place entered, or the notoriety of the objects called for, by the names given them.

2. It remains to consider whether any error was committed in omitting to charge the jury upon any given point, or in giving them a charge contrary to law.

If the Circuit Court when applied to, refuse or omit to charge the jury on a point material in the cause, and the jury find differently from what they ought to have found, if a correct charge had been given, the party is as much injured as if a wrong charge had been delivered, and it would seem ought to have the same remedy.

The Court is intrusted with the administration of the law; and it is certainly of much importance that their opinions upon material points should be clearly understood by the jury, who are to ascertain the facts and then apply the law, as given .them by the Court. Although this is our opinion upon these points, we are far from believing it would be proper in any judge to set and deliver opinions on abstract legal questions, not at all essential to a correct determination of the dispute.

It seems to us that in this case the Circuit Court was not bound to give an opinion separately upon each point requested; but that it was bound, when delivering its charge, to give a connected opinion that would embrace every material point.

This, we believe, has in substance been done, and the only question remaining is, whether this opinion was incorrect. The great difficulty in this case has proceeded from there being two twelve-mile trees. How would the subsequent appropriator know which of the two was intended by the enterer ? Hardin’s Creek is to be included, — Hardin’s Creek is at the western twelve-mile tree. Was this creek generally known by this name in the year 1784, when Hardin’s entry was made, or in the year 1788 when Kennedy’s and Baird’s grant issued? The proof upon this point is very much divided at these periods between the names Hardin’s and Carter’s ; — suppose the call in the entry to have been for the twelve-mile tree including a creek, giving it no name, this entry would have been good, if no creek was found at the other twelve-mile tree, — but it seems there are several streams there. At one of these places it appears certain, this entry was to be satisfied ; at each of them there is a twelve-mile tree, and one or more watercourses. How would a man determine between them ? If the calls would equally well suit either place, it is not a good entry. At the place claimed there is a creek called by many, Hardin’s, at the other there is no stream that ever was called Hardin’s; but it is said Hardin’s Creek was not generally known by that name ; in this cause that will make no difference, because, at the other tree, every creek was well known at that time by a given name, and neither of them by the name of Hardin’s. The subsequent appropriator would know that one of these places was intended; and he would not have any reason to suppose the eastern twelve-mile tree was the one, as the names of the streams there were notorious. We would, therefore, necessarily conclude the land at the western tree was that covered, although he knew nothing of the creek by any name ; but if he did ascertain it by any name, it is as probable at that day to have been by the name of Hardin’s as Carter’s.

It has been urged that it would impose an unreasonable burden on a subsequent locator, to compel him to examine both places to find out which of the two the enterer intended. If we suppose him at the western twelve-mile tree and acquainted with the calls in the entry, and having no knowledge of any other twelve-mile tree, he would be certain this was the place intended; because it is only by a knowledge of both trees doubt is created. If we suppose him acquainted with the other, we ought to believe him likewise acquainted with the names of the streams near it, as they were notorious ; and, as neither of these streams were ever called by the contending names, he would be at no loss to determine which of the two trees was intended.

But it has been urged that the subsequent appropriator might never have been at either tree himself, and that he derived his information entirely from others. Take this for granted, and suppose his informant acquainted with the western twelve-mile tree only, and was consulted whether this was the place intended by Hardin’s entry, he would certainly say it was. Suppose his informant acquainted with both trees, and possessed of other information which seems to have been general, that is, the names of the streams, what information would he give ? he would say there are two twelve-mile trees, and if there was nothing more in the entry I should be unable to determine which was intended ; but this entry calls for Hardin’s Creek. It could not have been intended for the eastern tree, because, if that tree, although it- would include the heads of several streams, yet these streams were known by their respective names, at the time of making Hardin’s entry, and none of them were ever called Hardin’s; and therefore I conclude the western tree was intended, because there is a creek which will, at that place, run through the tract, and I never heard it called by any name; or, sometimes it was called Carter’s, and sometimes Hardin’s.

Taking then the whole of the calls in this entry, and applying the evidence disclosed in this record, it seems certain that one of these trees must have been intended; and going one step further, and determining between these trees, it seems equally certain that the western tree was the one intended ; and that this intention could have been ascertained by any man wishing to make a subsequent entry. By looking at the calls in Hardin’s entry, and applying to them that information which, with reasonable 'industry could have been obtained, all difficulty would vanish.

3. As to the question whether a new trial ought to have been granted, it is useless to say anything upon it; from what has been said on the other points it will readily be perceived that this Court believes no error was committed in refusing the new trial, and that the judgment of the circuit ought to be affirmed.  