
    
      Moore &c. vs. Smith
    
    Chancery.
    November 22, 1825.
    Appeal from the Garrard Circuit: John L. BrjdíJes, Judge.
    
      Entries. Northwardly. Eastwardly. Lands unfit, for cultivation.
    
    Entry of Wil-lian?nnoine íor IUUU acres on Rockcas-'tlc creek.
   Judge Mills

delivered the opinion of the Court, composed of Chief Justice Boyle and himself, Judge Owsley not sitting in the case.

This is a contest for lands under adverse claims. The appellee relies on the follow-in entry, for relief against an elder grant, to-wit:

“William Payne enters 1000 acres of land, on a Treasury warrant No. 8690, lying on a branch of Rockcastle, that Boon’s trace goes down; beginning at the forks oi the hcajjold Creek, running Ibastwardly four hundred poles; thence at right angles (if not restrained by uncultivatable land) Northwardly so far as will include the quantity, excluding and binding on landswnfitfor cultivation

decision of the “rcuit t^e en_ try.

Evidence of notoriety cnll'ed for^n* the entry.

February 21, 1784.

This entry was sustained by the court below, as good for all the land included by a right angled figure to a line due east iroin the beginning, and thence due north from each end thereof, till a line parallel to the .first, .included 1000 acres, which was the rhode.in-’which the survey was originally made. The entry of the appellants being posterior in date need not be noticed.

It appears that a trace uniformly and notoriously called B.oon’s trace, leading from English’s Station to Bo.onsbor.ough, passed down a branch of Rock-castle river, continuing therewith seven or eight miles. ;jt also crossed the .river and then went up another creek called Skegg’s creek, on the opposite side.of the river. JBut before it .went up Skegg’s creels, the trace forked, and one branch of it led in anotherjdireetion,,and did -not pass along any creek emptying into the river. The creek first named has a remarkable fork, which nearly divides the waters thereof. This fork is situated not piore than a half mile from where the trace departed from the Station as it descended it. This "creek, clown which the trace passed, is now called Round stone creek, or Round stone Lictk creek, and the fork, which departs therefrom, op ;which the trace did pot descend,' is noyv called Clear creek. And indeed there is proof that these streaips were known by these latter names bpfore the date of the entry. It is, however, strongly proved that the stream, down which the trace passed, was not known to nqmy, and perhaps ¿npstof the hunters and explorers conversant in the neighborhood, by the name of Round stone lick; butpvas described as the creek or branch of Rockcastle, down which,Boon’s trace passed; ,and those who knew it by another name, knew it by this also and all admit it was well described by . either name, before, and at the date of the entry. The only uncertainty in this description arises from one branch of the same trace going up another stream on the opposite side of Rockcastle. This uncertainly is however obviated by the proof of Scaffold creek, which branched from the creek claimed, and not from the other, and it is proved to have been notorious by that name. It is true, some knew it by its present name of Clear creek, and others by both names. But Scaffold creek was the most notorious name. Every subsequent locator, with the proper information would have taken the stream down which the trace passed, which was connected with Scaffold creek, instead of the opposite creek on the other side of Rockcas-tle.

Call for the forks of Scaffold Creek, held to mean the fork made by the junction of that creek, with a branch of itockcastle.

Entry calling to exclude prior claims, without describing them, is invalid; otherwise of a call to exclude lands ung(; for cui_ tivation.—

Having thus ascertained the stream intended, the next difficulty arises from the words of the entry, beginning at the forks of Scaffold creek. This latter creek had no notorious forks, except one five or six miles from its junction with the other stream, so that an entry laid there could not lie on the stream down which Boon’s trace passed. The place where Scaffold creek united with Round stone is the fork claimed. This' it is contended will not answer the calls of the entry; and it must he admitted that this place is not well described. One witness has proved the two streams united were known by the name of Scaffold. But the-weight of evidence is against ibis, and the entry itself rather negatives the idea. But as no one could lay this entry with propriety up at the fork of Scaffold creek itself, and as Scaffold creek, at its separation from the other stream, did make a fork, no reasonable doubt could be entertained that that was the place intended, notwithstanding the words do not literally mean it. We therefore conceive, that the court below assumed the correct point of beginning.

The expressions, “if not restrained by uncultivatable land” and “excluding and binding on lands unfit for cultivation” are next relied on as fatal to this entry. And the cases decided on entries containing expressions “excluding prior claims,” and “including so much vacant lands” have been relied on as analagous in principle to this. Jt is true it is decided jin these latter cases that such calls are do-tractive, and that it lay cm the mater of such entries to point out such claims by name; so that oth-érs might find them. But there is a considerable difference between these calls and the calls of this entry. Prior claims could Only be sought for On the records first, and then upon the ground, and if found on the record, yet finding them upon the ground afterwards might prevent insuperable cliffi-culties. In this case the untillable land must be sought on the ground only. The question here might be, who is bound to show that such land is of is not within the boundary? Must the complainant show that such land is not there, to avoid the effect of the call excluding it, or must the opposite party show that such lands are there, to prevent the other from taking it. It is true that such a call for excluding out of the inside of the survey lands unfit for cultivation, might produce considerable uncertainty and difficulty, in ascertaining what was or was not iinfit for cultivation in the understanding of the locators of that day.

Bu{_ u

Where the entry are^to run at right angles, if not [estíaint1? cultivation and thence exci^din^’ and bourlliDim-on lands un-° ^°rnoultj} the landTun-fit for culti, ration are // enUy'is invalid/

Rut we need not here go into it; for the follow-ipg expressions, “binding” on such lands,- and the previous expressions, “if not restrained” by such lands show that the margin of the claim was to be affected by these calls. Add to this thé cajls for the cardinal points oí the compass, are not positively assumed as the course of the lines. They are “eastwardlv” and “northwardly,” instead of' east and north. Cases may he found where such expressions have been construed due east of due north; hut these are cases where such calls stood alone, and the uncertainty thereby created would be properly aided by construction, at res metgis vediat quam pereatr, and we know of no cases where such uncertain expressions are used evidently with an intention that some other objects should bind the claim in which they have been constrained to fix the lines to the cardinal points. This would be making calls aided by construction control positive calls, which would be absurd. The locator in this instance left these expressions eastwardly and northwardly evidently indifinite, that he might accommodate tlie lines of his survey to the untilable lands, and that such lands should form a.part if not the whole of his boundary. Hence it is necessary that he should shew such lands as his-boundary. He has bound himself to “bind” his survey on such lands, and must therefore do it, or show that it cannot be done before he can dispense with the call. The language assures us that such lands are there, and how near they approach to, or how far they are distant from the base, even if the base be certain, or how much his sidelines must be varied on the account of such lands approaching one or both of them, he has not shown us, and we therefore deem his entry inva-did.

Petition for a re-hearing.

The decree must be reversed with costs and, the •cause he remanded with directions to dismiss the •bill with costs.

Petition for a 're-hearing.

Thomas Triplett, attorney for William Smith, respectfully solicits a rehearing in this cause, and a reconsideration of the claim of the complainant.

The entry under which he claims, ca]]s ]je on the branch of Rockcastle, that Boon’s trace goes down; beginning at the forks of Scaffold creek, running eastwardly 400 poles, thence at right angles, (if not restrained by uncultivable lands,) northwardly, so far as will include the quantity, excluding and binding on land unfit for-cultivation.

It is plain do the senses of the most ordinary man, that the lands intended to be appropriated by this entry were the tilahle lands on Rockcastle creek, or so much thereof as would satisfy the entry and to run to the second calls at right angles, unless restrained by the hills, and to vary according to circumstance of the ground. That there is uncultivable lands, the general history of the country proves; and the court, without other evidence, will take notice of it. The calls the court deem fatal in the entry, are the expressions, “if not restrained by uncultivable lands,” and “excluding and binding on lands unfit for cultivation.” it is plain and evident that the locator knew there were such lands, and the language used wag intended to indicate what land be intended to include within the boundary of the.one thousand acres, and what land was to be ex-eluded, and to point to the subsequent locator, how on reasonable search and examination, to appropriate the adjacent residium. A subsequent locator, arriving at the place of beginning, could not have difficulty in finding the land appropriated by the entry. The call to bind on Rockcastle, to run east-wardly, (which according to the adjudicated cases is a call to run east,) the call at right angles, which was intended to carry the line from Rockcastle, is alone to be restrained by uncultivable lands. The subsequent call of north, excluding and binding on lands unfit for cultivation, sufficiently apprized the subsequent locator of the lands excluded, and those intended to be surveyed. A subsequent locator, by the exercise of his ordinary senses, would have known what lands were included and excluded and adjoined; for one moment he would not have to have doubted as to the lands which were or were not unfit for cultivation, in the ordinary modes of farming in Kentucky, and must have- known what was to he included and what to be excluded in the survey. The counsel for the petitioner believes that the calls of the entry, so far from confusing and be* wildering a subr equent locator, are directory and special, and amply apprized the locator what land the entry embraced-. It was impossible for the locator to give a more distinct description of the lands; he intended to exclude, than uncultivable lands, he could not describe the hills and mountains and barren soil, but gave the subsequent locator a notorious place of beginning, and where the lands was intended to lie, and such directions as he could not err with ordinary diligence; expressions could not be used to give a more manifest and clear description of the land appropriated.

petition for a re-hearing,

The cases in argument, relied on by the appellants, are of prior claims; the locator should set forth and shew those claims, that he intended to exclude. The reasons are obvious for such decisions; those claims being of record, the locator should give those wishing to appropriate the adjacent' residium, the claims excluded; otherwise it would be unreasonable to compel a subsequent locator to search through all the entries in doubts and perplexity to find them, previous to his making his entry. The opinion of the court that the appellee should have shewn there were lands unfit for cultivation, with deference to the opinion of the court, the counsel conceives it Would be unreasonable to reverse the decree on that groundj and dismiss the bill, as the balance of the calls of the entry is established. The general history of the country proves that there is such lands in that section of country, and the entry shows that1 the tillable lands on-Rockcastle, were alone appropriated, and it was not intended tp run the survey in the mountains.

Petition for a ie-hearing. '

October 20, 1827. ’

Payne’s entry- '

Should the court incline to believe We should introduce proof of the existence of those lands, unfit for cultivation, as there is such in fact,the court is respectfully solicited not to direct an absolute dismissal of the bill, but permit the inferior court to give leave, if asked for by the complainant, to take proof to that point.

The counsel, for the foregoing reasons, solicits a rehearing, or the decree rendered herein should be .changed.

Chief Justice Bibb

delivered the Opinion of the Court, consisting of himself and Judge Mills, on the petition for a rehearing.

The complainant in chancery, as the foundation of his equity, sets forth this entry for relief against the elder grant;

February 21st, 1784.

Mfm- Payne enters 1,0.00 acres of land, lying oil a branch of Rockcastle, that Boon’s trace goes down, beginning at the forks of Scaffold creek, running éastwardly four hundred poles, thence at right angles, (if not restrained by uncultivable land,) north-wardly so far as will include the quantity, exclüd-ing and binding on lands unfit for cultivation.”

The former opinion of this, court declared this entry invalid for uncertainty, and reversed the dev cree of the circuit court, in supposing it special and precise; and the question is now before the court .upon a rehearing.

Where east-wardly and • nothwardly, are employed to indicate on whal side a given base^ line of the land shall run, that purpose is :\n-swered by them, and the entry may be valid—

But—

Where there is no base given, and the other calls do not fix the boundary, the call for eastwardly and north-wardly, are flexible and not sufficient to give figure to the entry.

Case stated where north- ■ wardly and eastwardly are sufficient calls and where not.

The forks of Scaffold creek alluded to in the entry is admitted in the former opinion as sufficiently described, as giving a certain point of beginning for the survey. But conceding this the entry is vdid on its face, for uncertainty, and should be so adjudged on demurrer, if it were on demurrer to the bill. The expressions, eastwardly, and northwardly, by former adjudications are flexible. They do not mean due east, and due north; in this entry those expressions are obviously used and intended as flexible. In the cases of Smith vs. Grimes, Hughes 18; Bradford vs. M’Clelland, Hughes 118; Craig vs. Hawkins’ heirs, 1 Bibb 53; Calk and Orear vs. Stribling, 1 Bibb 122, such expressions as northwardly, eastwardly &c. were adjudged not to mean due north, east &c. but as indicative on which side of the base the survey was to be executed; to these might be added many more.

But entries declared invalid in the cases of Hendricks vs. Bell, 1 Bibb 138, and of Stewart and al. vs. Clarke’s heirs at last term, are more exact in similitude to the present. Although this éntry has a beginning, it has no definite base, no certain course, every after description is uncértain, vague and yielding, for the purpose óf excluding arid binding on land unfit for cultivation, and of taking land fit for cultivation. It is in effect an entry in which the locator has carefully reserved to himself the privilege and intent to run to the best advantage, for himself, fof quantity,

Therfe is a class of entries, wherein the expressions, ‘excluding prior claims,’ ‘excluding lands unfit for cultivation’ &c. are deemed valid; and another class wherein the expressions, ‘to bind on prior claims,’ or ‘if not obstructed by a prior line’ &c. are deemed invalid. The difference is, between giving a certain figure and defined area, out of which prior claims, or lands unfit for cultivation, may be excepted in executing the survey, and platted out, if the owner does not chose to waste his warrant upon such, when he finds them within the exterior and precise boundaries and limited area prescribed by the entry, not depending for expansion or contrae-tiori upon those expressions; and between giving no certain figure, nor defined area, but leaving course to be directed, distance tobe governed, and area to be expanded, or contracted, by force of the allusion to prior claims, or lands unfit for cultivation. It is the difference between limited space and unlimited, between precision and the want of precision, between certainty and uncertainty.

Turner, for appellants; Crittenden and Triplett, for appellees.

The former opinion and decree of this court must stand unaltered and affirmed.  