
    GOODLOE’S HEIRS vs. WILSON.
    
      Nashville,
    
    Nov. 1809.
    
      Ejectment for 228 acres of land, and not guilty pleaded ; the defendant having disclaimed all the lands to the north of the military boundary line. The plaintiff produced a grant to David Phillips dated the 15th of September 1787, and proved the lands in question, to be the lands described therein ; that Phillips conveyed to Robert Goodloe, the said land, and that the lessors of the plaintiff are his heirs at law.
    Grants on military warrants over the line are void; and the line as run by public authority is obligatory on all.
    
    The defendant who was also proved to be in possession, produced a grant, dated the 17th of November 1794, and also an entry dated the 14th of April 1784, “ two thousand acres of land on the waters of Harpeth about two miles south of the military line, to include the Buffaloe lick."
    The land as run, begins at a tree one mile north of the lick ; thence West, thence South, thence East, thence North, thence West to the beginning ; making the beginning tree to stand in the middle of the north boundary line ; that the survey included the land in question.
    The plaintiffs’ counsel then produced their entry, copied from the Book in which the military entries were made, dated the 17th of October 1783 stricken across with a pen, and 1784 placed after it. And they produced from the secretary’s office of North Carolina, a copy of the warrant returned with the survey on which the grant to Phillips issued, with an endorsement on the warrant of a location made for Phillips, on the 17th of October 1783, in the same words as that which was in the military book, and was now produced from thence. Also the plat annexed to Phillips's grant, purported to have been made upon a location dated the 17th of October 1783. The plaintiffs’ counsel then stated, that the court on a former ocasion had said, that the entry book could not be given in evidence, because by the law of this state, the Jury were to carry with them, when they retired, all such records as were given them in evidence ; and that on Oyer, the record ought always to remain in one certain place ; and if this Jury could receive, and carry it off, so could other Juries ; and as the Book could not be given in evidence, the plaintiffs would not be allowed to give parol evidence by the keeper of the book, that this entry stood 85, and that other entries after this, as far as 83, and upwards of one hundred were dated in 1783 ; which fact proved that the entry 85 could not really have been upon the book after those of 1783, & of course must be misdated as to 1784, and that this evidence ought to be admitted, because of the doubt raised by inspection of the copies.
    But the Court, consisting of Humphreys and Powel, said this book is a record, and upon it depends all the titles for land in the military bounds. If we suffer one part of it to be explained by parol evidence, we must do so whenever it is called for, and shall thereby expose all such estates to be overturned by parol evidence.
    This is an evil of too great magnitude to be endured ; we will not let it in, by making the decision that is now desired of us. The plaintiffs’ counsel then offered to prove that before the military entry book was ordered to be kept, it had been the common practice to make locations on the back of the Warrants.
    
      Per Curiam. That would be to permit the same thing to be proved which we have just rejected, viz. that the true date of the entry is on the 17th of October 1783, whereas we have just decided, that the date upon the book shall not be contradicted. This evidence cannot be received.
    
      The plaintiffs’ counsel then offered two certified copies of entries from the book, standing after the 3d entry, No 85 which bore date in 1783.
    
      
      Per Curiam. The object of the proof is to show that the entry dated in 1784 bears a wrong date, and should be the 17th of October 1783. We will again, as explicitly as we can, declare our opinion. The date of the entry as it stands on the book ought not to be contradicted, explained, or altered by any parol evidence, nor by any evidence of custom, nor yet by any other entry upon the book itself. The plaintiffs proved by parol evidence, that certain commissioners said to be appointed by North Carolina to run and mark the military line, described in 1788 c. 3 s. 7, took the latitude of the Kentucky line, in the month of February 1784, & ran fifty five mile south, to mount Pisgah ; and some of the Commissioners ran west from that point & others, East ; that in running East the Commissioners discovered on the first day, that they were declining too much to the North & supposed the error to be occasioned by the snow, & the wetting of the needle. One of the Commissioners then went back, for another compass,but when it came, it was equally erroneous with the other. That they went on marking the line, about thirty two miles ; & the Commissioners there left the Surveyors, who went as far as Collins’ River. And the plaintiffs' counsel further proved, that a due East line from Mount Pisgah would leave the lands in question to the North, and of course within the land described by the said act of 1783, c. 3. s 7.
    The plaintiffs’counsel opened this case, and stated that the plaintiffs were entitled to recover if they had an older grant, which covered the land in question, unless the defendant had a special entry senior in date to such grant, followed by a grant thereupon. Here the plaintiffs have such elder grant, and the defendant has not such special entry. What is a special entry ? It is that which gives notice to others who see it, of the place intended to be surveyed ; & no such notice was given here ; for the Surveyor might include the spring and be to the West, to the North, to the South, or to the East, as to all the land, except the small part between the spring, and that line of the tract which was nearest. Allowing it to be a special entry, it ought to include not 
      only the Lick, but also the point two miles South of the boundary line, and if both these points be included, the land in question will not be effected by a survey, whether that survey be made in a square or an oblong. And as to the lands in question, lying to the South of the Military line, they said that could not render the plaintiffs' grant void, for the act of 1783 c. 3 s. 7, does not say that the grants of the officers and soldiers shall be void if obtained for land beyond those bounds ; altho in the same act, Sec. 8, grants obtained by others are declared void, which is also repeated in 1783 c. 2. Sec. 12. And for another reason the plaintiffs’ grant cannot be deemed void. The marked line relied on by tho defendant, is really not so. Admitting that authority was given by the state of North Carolina to certain Commissioners to run & mark the line described in the act of 1783 c. 3. s. 7, the acts of such Commissioners are not valid unless they have pursued the authority given them ; and they did not pursue their authority in this instance, because they ran ten Degrees to the North, from the line discribed in the act ; and also, because they marked only a small part of the line, and left the rest of the business unfinished and never resumed it again, nor made any report of their proceedings to the state of North Carolina. The fact is, that had it not been for the errors committed by those Commissioners, the plaintiffs’ land was really within the bounds described by the act.
    
      Counsel for the defendant.
    
    The plaintiffs' entry cannot be a legal one, being on a military warrant, unless the land described in it be within the military bounds, and for this plain reason, that the law has not authorised any grant to be issued to an officer or soldier for other lands than those within the military bounds. The officers of North Carolina had no authority to issue any such grant, and of course it must be void, as any other act is, which is done in the name of another by a person not appointed by the other. It is of no force to say, that such grant is not declared void by any act of North Carolina ; it is equally void for want of authority in the doer as if it were declared void by the act in express terms. The act of 1783 c. 3. s. 7. declares that the officers and soldiers shall enter and survey within the bounds therein described, and that implies an gative though not expressed ; namely that they shall not enter and survey elswhere. If an officer or soldir is not confined to the military bounds he may go beyond these bounds and survey lands, which the legislature set up to sale at the rate of ten pounds per hundred, and the public will lose the price or value of those lands. One object of the Legislature in separating the military lands from the other vacant lands of the country, was to prevent those troublesome disputes which were likely to arise from permitting entries to be made promiscuously by all persons upon all the lands in the country ; and its intention will be defeated if officers and soldiers may go where they please, and make entries. The disputes between them, and other enterers, will still remain unprevented. The cession act proves that the military entries could not be made beyond the military bounds, for it is provided by the act, Iredel’s Revisal 664, that if the lands laid off, or directed to be laid off, for the officers and soldiers should not contain tillable land enough for their satisfaction, the same may be satisfied on any other vacant lands, and why make this provision if these claims might have before been satisfied on other lands ? As to the argument that the act of 1783 c. 3. has not used any negative words, prohibitory of entries or surveys to be made by the officers and soldiers over the military bounds, according to the true construction of acts of Parliament, or of As sembly, such words need not be used, if there are affirmative words which necessarily imply such negative. 6 Bac. Ab. by Gwil, page 377 ; & here such negative is as strictly implied, as can be from affirmative words. If upon this point our position be a legal one, we are still encountered by another argument on the side of the plaintiffs. It is said that the marked line, is not the true Military line; that the line described in the act, is the true one. The Commissioners appointed by the state of N. Carolina marked the line as they went, and that is a proof that they did not intend to run any other, and there is not any proof of such intention.
    Another reason why this line should not be questioned at this day is ; that the officers and soldiers, and all mankind have acquiesced in it ever since it was run. It has constantly been called the continental line, and considered as such. It is argued that the commissioners did not finish the running and marking the line which they began to run and mark, and that they did not consider as binding the small part of the business which they did ; especially as they early discovered the error they were committing—I would ask why did they go on marking, after discovering the error ? The answer is plain. The error was so trivial, that they did not think it worth while to correct it at the expence of a new line, or new demarkation ; and thereto re did not intend to correct it at all; they intended that to be be finished which they did.
    The law which is cited to prove, that to be void which is done by authority when he does not pursue his authority, is good law, as to individuals, but when applied to public law, it is not so.
    If a line is run between this state and Kentucky by commissioners appointed by both states, it is binding upon the public, although it be not run exactly according to the lines described in the chartered limits of this state. I will now notice a few remarks in our entry, and conclude. It is special enough.—The lands are to lie two miles south of the military bounds, and are to be upon the waters of Harpeth. Two miles south of the military bounds, is a general direction, and so is the call for Harpeth, neither of them confined as to a particular spot, but to include a certain lick is special, because, it specifies, the very spot which is to be included in the land to be surveyed.
    
      Counsel for the plaintiff in reply.
    
    It is not a good argument to say, that the line shall be considered as the military boundary, because it is marked—for suppose instead of running ten degrees too much to the north, it had run eighty, and been marked, the argument would here be equally good as it is now ; and surely in that case it would be exceedingly incorrect. Of no greater force, is the argument of acquiescence. In 1784, ch. 19 s. 7 and 8, the Legislature declared in express terms, that the officers and soldiers claims shall be satisfied out of other lands if there were not lands enough within the military bounds. The Assembly of North Carolina acquiesced, because no return was made to them by the commissioners ; and the army acquiesced, because after such express provision, it was immaterial to them whether the line were established or not, and so rightly considered. As to the difference contended for between the case of individuals and public concerns, if a small matter, of small value, when not done pursuant to authority shall therefore be void, reason would seem to require, that in concerns of greater value, the rule should be more rigidly adopted. I deny there is any proof that commissioners were appointed by North Carolina to run the line in question.
    There is no act of Assembly, nor any resolution of the Assembly nor other Document to prove it. The argument from inconvenience is rebutted, by experience. The inhabitants living near the eastern boundary do not feel any inconvenience from that line not being marked, and why may not the inhabitants to the south do without demarkation as well ; at all events, the Legislature can remedy the mischief, if any there be, whenever the necessities of the people require it ; & is it not better that the Legislature shall be at the expence of doing so, than that the courts of the country should so infringe the rights of individuals who are really within the line described by the assembly in order to avoid the inconvenience of ascertaining where it is.
    Are we permitted by the constitution to adopt such a course, to sacrifice the rights of some individuals, to accommodate others ? By no means ; it speaks a quite different language ; private property shall not be taken for public uses, unless in cases of extremity, and then not without making just compensation—and here we are desired to bring the estate of the plaintiff upon the altar, lest other individuals might at some time or other in cases of disputes be put to the expence of ascertaining where the line is.
   Humphreys J.

I will as shortly and as plainly as. I can, state my opinion upon the several points made in this case.

The plaintiffs’ grant is dated on the 15th September 1787, the defendant’s in 1794 ; if there is nothing more given in evidence, the plaintiffs’ grant will confer the best title. But the defendant has given in evidence an entry (here he called for the entry and read it.) If this be a special entry, then the defendant’s grant relates to it and takes effect from the date of it, which will be prior to that of the plaintiffs’ grant. The first call, which is the waters of Harpeth, is what Lawyers term a directing call ; it directs in what quarter of the country to go, in order to inquire for the neighbourhood where the land is : Two miles south of the military line is also directory : To include an old Buffaloe lick ; this is a special call. There have been many decisions upon this point in the state, and it is far better to adhere to ancient determinations than to keep the law continually vibrating from one point to another by departing from them on every new occasion. And the decisions I speak of here, establish that a Lick, spring, and the like, where called for, render the entry a special one, and that the survey may be made as the surveyor thinks proper, provided the Lick of spring, or other such like call, be included in any part of the survey.

As to the grant of the plaintiffs being founded on a military warrant, and being upon lands beyond the military bounds, I am of opinion that such grants are void. And with respect to the controversy, whether the line run by the commissioners and marked, is to be considered as the true military boundary line or that described by the Legislature, I am of opinion that the line marked by the commissioners is to be deemed the true one, so far as they run and marked, if there be proof sufficient that the commissioners were appointed by proper authority, and had power to run and mark that line. Where commissioners are appointed by public authority, whatever they do as commissioners is binding on the public, though it be disapproved of. If for instance, Commissioners be appointed to run a State line or County line, and they do it, it is to be considered as the true line until the contrary be declared.

Powel J.

I concur with the opinion delivered by Judge Humphreys.

Overton J. absent.

Ex-relatione Mr. Haywood.  