The law of Kentucky requires, in the location of warrants for
land,
some general description designating the place where the
particular object is to be found, and a description of the
particular object itself.
The general description must be such as will enable a person
intending to locate the adjacent residuum and using reasonable care
and diligence to find the object mentioned in that particular place
and avoid the land already located. If the description will fit
another place better, or equally well, it is defective.
"The
hunters trace,' leading from Bryant's Station over to
the waters of Hinkston, on the dividing ridge between the waters of
Hinkston and the waters of Elkhorn," is a defective description,
and will nonsupport an entry.
Page 14 U. S.
131
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
This is an appeal from a decree of the Circuit Court of
Kentucky, by which the plaintiff's bill was dismissed.
The object of the suit is to enjoin the proceedings of the
defendant at law and to obtain from him a conveyance for so much of
the land contained in his patent as interferes with the entry and
survey made by the plaintiff.
The plaintiff claims by virtue of an entry made on 17 January,
1784, the material part of which is set forth in the bill in these
words:
"Richard Matson enters 22,277 and a half acres of land, on
Treasury warrant No. 19,455, to be laid off in a parallelogram
twice as long as wide, to include a mulberry tree marked thus, 'F,'
and two hickories, with four chops in each, to include the said
three marked trees near the center thereof, the said trees standing
near the Hunter's Trace, leading from Bryant's Station over to the
waters of Hinkston, on the dividing ridge between the waters of
Hinkston and the waters of Elkhorn."
This entry has been surveyed, he states, according to location,
and that part of it which covers the land in controversy has been
assigned to him.
The validity of this entry constitutes the most essential point
in the present controversy. If it cannot be sustained, there is an
end of the plaintiff's title
Page 14 U. S. 132
if it can, other points arise in the case which must be
decided.
This question depends on the construction of that clause in the
land law which requires that warrants shall be located so specially
and precisely as that others may be enabled with certainty to
locate other warrants on the adjacent residuum.
In the construction of an act so interesting to the people of
Kentucky, it is of vital importance that principles be adhered to
with care, and that as much uniformity as is practicable be
observed in judicial decisions. This Court has ever sought with
solicitude for the true spirit of the law as settled in the state
tribunals, and has conformed its judgments to the rules of those
tribunals whenever it has been able to find them established.
In the cases which have been on different occasions examined
that absolute certainty which would remove every doubt from the
mind of a subsequent locator appears never to have been required.
The courts of Kentucky have viewed locations with that indulgence
which the state of the country, and the general character of those
who first explored and settled it, would seem to justify, and have
required only that reasonable certainty which was attainable in
such a country, and might be expected from such men as were
necessarily employed. The effort has been to sustain rather than to
avoid entries, and although the motives which led to this course of
adjudication are inapplicable to late entries, made on land
supposed to be previously appropriated, yet it is not understood
that different rules of construction
Page 14 U. S. 133
have ever been applied to entries of different dates.
By these rules, a certainty to a common intent, a description
which will not mislead a subsequent locator, which will conduct
him, if he uses reasonable care and diligence, to the place where
the objects are to be found, will satisfy the law and sustain the
entry, but such a certainty must exist or the entry cannot be
sustained.
A location usually consists of some general description which
designates the place in which the particular object is to be found,
and of a description of the particular object itself. The general
description must be such as would enable a man intending to locate
the adjacent residuum, by making those inquiries which would be in
his power, and which he would naturally make, to know the place in
which he was to search for the particular or locative call so
nearly that by a reasonable search he might find the object
mentioned in that particular or locative call and avoid the land
located. If the description will fit a different place better or
equally well, it is too defective, because if it does not mislead
the subsequent locator, it leaves him in doubt where to search.
The general description in this case is
"the Hunter's Trace, leading from Bryant's Station over to the
waters of Hinkston, on the dividing ridge between the waters of
Hinkston and the waters of Elkhorn."
Will this description designate the place in which the trees
called for in the location are to be found?
Page 14 U. S. 134
Bryant's Station is a fixed place of public notoriety. It is on
the great road leading from Lexington to Limestone, on the Ohio,
which road crosses the dividing ridge between the waters of Elkhorn
and Licking, which is the ridge mentioned in Matson's entry. This
road had been traveled by hunters, but seems to have been known by
the name of the Blue Lick, or Buffalo Trace, and not by the name of
the Hunter's Trace.
A trace which was at the time called the Hunter's Trace leaves
this great road at Bryant's Station, and proceeds in a direction
west of north, until it crosses North Elkhorn, where it divides,
the lefthand, or more western trace, after entering a road leading
from Lexington to Riddle's Station, on Licking, or that branch of
Licking called Hinkston, crosses the dividing ridge about the head
waters of a creek now called Townsend, which empties into the
stream running by Riddle's Station a little above that station.
This creek was, in the year 1784, known by the name of Hinkston
Creek, or perhaps Hinkston's Mill Creek.
The right or more eastern fork again divides nearly two miles
before it reaches the dividing ridge. Each of these traces crosses
the dividing ridge to the head waters of Cooper's Run, which
empties into Stoner's Fork. The more eastern of them crosses
Stoner's Fork, and, passing Mastin's Station, terminates very near
that place. Cooper's Run empties into Stoner's Fork, which either
empties into Hinkston, and then passing by Riddle's Station,
empties into Licking, or, uniting with Hinkston, forms the
Page 14 U. S. 135
south fork of Licking, and passes Riddle's Station with that
name. The river, from the junction between Stoner and Hinkston,
seems to have been known both by the name of the South Fork and of
Hinkston's Fork.
All these traces were in fact, hunters' traces, but each of
them, except that leading to Mastin's Station, was distinguished by
some name peculiar to itself, generally by the station or place to
which it led, as Riddle's Trace, the Blue Lick Trace, &c., and
no one of them, except that leading to Mastin's was notoriously and
preeminently called "the Hunter's Trace." There is some testimony
that this was also known by the name of Mastin's Trace, but the
great mass of testimony in the cause proves incontrovertibly that
this trace was known and distinguished generally by the peculiar
appellation of "the Hunter's Trace." It is on this trace that the
location was made.
The Hunter's Trace, then, used in such a manner as to satisfy
those interested in the inquiry that it was intended to be employed
as the name of some particular trace, would have been considered as
designating the trace leading from Bryant's to Mastin's Station,
and would have been sufficient to show that the lands located by
Matson were on that trace. Had no further description of it been
attempted, but the trees called for had been said to stand on "the
Hunter's Trace," where it crosses the dividing ridge between the
waters of Hinkston and Elkhorn, it would have been clear that the
trace was referred to by its name of greatest notoriety, by a
name
Page 14 U. S. 136
which no other trace received; and both the trace and the part
of the trace where the objects specially called for must be found,
would have been designated with sufficient certainty. There is no
evidence in this cause, nor is the Court apprised that any other
trace, distinguished as "the Hunter's Trace," led from any other
place than Bryant's Station, over the dividing ridge between the
waters of Elkhorn and Hinkston, and consequently a reference to
this trace, by its name, was all that was necessary for its
designation, and would have designated it most unequivocally. But a
further description has been attempted, and this has produced the
difficulty felt in deciding this cause.
It will not be pretended, that the locator was confined to this
reference to the name, or might not add to the description, and
make it more minute; but if, in doing so, he has destroyed its
certainty, if he has created doubts with respect to the trace
intended, which may mislead subsequent locators, the validity of
his location becomes questionable.
The words added to "the Hunter's Trace" are "leading from
Bryant's Station over to the waters of Hinkston."
These words are not unmeaning, nor does the Court feel itself
authorized to reject them as surplusage; nor do they form any part
of the name of the trace. Why then are they introduced? Subsequent
locators might consider them as explanatory of the words "the
Hunter's Trace." If they are so explanatory, there is certainly
much plausibility afforded to the conclusion, that the locator did
not
Page 14 U. S. 137
mean to refer to the trace by its name; for if such was his
intention (there being no other trace of the same name), a further
description would be unnecessary, and a more particular description
would be impossible. Perplexity and confusion may be introduced,
but an object cannot be rendered more certain than by bestowing on
it its particular and appropriate name, if that name be one of
general notoriety. The court felt the force of the argument, that
"the Hunter's Trace," leading from Bryant's Station over to the
waters of Hinkston, might be understood in the same sense with the
words "the Hunter's Trace," or "that hunter's trace which leads
from Bryant's Station over to the waters of Hinkston." Understood
in that sense, the additional and explanatory part of the
description might be considered as its essential part, and might
control the words "the Hunter's Trace," which, connected as they
are in this description, are not incapable of application to other
hunters' traces, though not usually designated by that particular
name. If this were to be received as the true construction, there
are so many other traces leading across this dividing ridge, from
Bryant's Station to the waters of Hinkston, that all pretension to
certainty, in this location, must be surrendered.
On this part of the case, the Court has felt considerable
difficulty, and it is not without hesitation, that it has finally
adopted the opinion, that "the Hunter's Trace" is to be considered
as referred to by its name, and that the additional words "leading
from Bryant's Station over to the waters of Hinkston"
Page 14 U. S. 138
are nearly an affirmation that "the Hunter's Trace" does lead
from that station to those waters. It leads to Stoner's Fork, which
empties into or unites with Hinkston's Fork, which afterwards
empties into the main Licking. These branches are all of them
called forks of Licking, and therefore it would seem to the court
reasonable (as is indeed indicated by much of the testimony), that
this ridge was rather considered as dividing the waters of Elkhorn
from those of Licking than from those of Hinkston. But Stoner's
Fork, to which this trace leads, may without impropriety be
denominated, as it sometimes has been denominated, "the Waters of
Hinkston."
It cannot escape notice that if this trace had been designated
as that leading to Mastin's Station, it would have been freed from
all ambiguity. But it has been decided in Kentucky, and necessarily
so decided, that a locator ought not to be held to the most certain
description of which the place is susceptible. A description which
distinguishes it from any other, although a better or still more
certain description might be given, is all that is required.
Having with much difficulty ascertained the trace, the next
inquiry is on what part of this trace the land entered by Matson
ought to lie. The location says, generally, "on the dividing ridge
between the waters of Hinkston and the waters of Elkhorn." It has
been objected that neither the side of the ridge nor the side of
the trace is specified, and that to search both sides of the ridge
and of the trace is imposing an unreasonable labor on subsequent
locators. The Court does not think so.
Page 14 U. S. 139
The ridge is not of such breadth as to render the search on both
sides the trace, from the foot of the ridge on one side to the foot
of the ridge on the other, a very unreasonable one. But the trees
must be found on the ridge, and a subsequent locator is not bound
to search for them elsewhere. The trees having in themselves no
notoriety, it is the more necessary that the place on which they
stand should be correctly described, and so described, that persons
interested in discovering them, might know how to find them. Let us
then examine the testimony to this point.
Richard Matson, who made the location, proves the place where
the trees stood. They are now cut down, but a mulberry stump
remains, which is the stump of the tree he marked, is No. 33., west
three poles from a white oak, now standing. He gives no description
of the place.
Henry Lee was with Matson when he marked the trees, and saw him
mark them. They had been hunting on the trace on Cooper's Run, and
on their return he says "on the aforesaid trace, or path, after
crossing the dividing ridge, near a small branch waters of Elkhorn,
Richard Matson marked," &c.
This testimony would rather indicate that, in the opinion of the
witness, the trees did not stand on the ridge.
Simon Kenton describes the crooked oak mentioned by Matson and
Jay: "it does not stand on the dividing ridge." On being further
interrogated, he says
"he well believes that the crooked oak stands on ground which is
a spur of the dividing
Page 14 U. S. 140
ridge which leads down to the junction of the branches,"
which unite a small distance below the mulberry stump.
In the course of his examination, this witness says that if he
could not have found these trees on the ridge, and had found them
where they stood, he should have taken them for the trees called
for in Matson's entry, but in no part of his testimony does he
indicates that he would have searched for them on the spur where
they stood.
Zachariah Easton, the surveyor, gives a very accurate
description of the place. The mulberry stump stands between two
branches, three poles from the eastern, thirty poles from the
western, and forty one poles from their junction. Along the trace,
which crosses the branch several times, the stump is one hundred
and ninety poles from the top of the ridge. The stump stands not on
the dividing ridge itself, but on a spur of the ridge, which does
not continue along the trace, but takes a direction west thereof
and unites with the main ridge, as would seem from the plat, sixty
or seventy poles west of the point at which the trace crosses
it.
Not a single witness deposes that the stump is on the ridge.
No testimony has been offered to the Court to induce the opinion
that, in Kentucky, a spur of a ridge is considered as the ridge
itself, and the contrary seems reasonable. Spurs sometimes extend
for considerable distances, and are certainly distinguishable from
the ridge from which they project. If, in this case, the trace had
led up this spur, a subsequent
Page 14 U. S. 141
locator might have considered it as a continuation of the ridge.
But the trace does the lead up the spur. It crosses a branch after
passing the spur, and then comes to the ridge. The Court is of
opinion that subsequent locators could not be expected to continue
their search after reaching the foot of the ridge, and that the
description fails in stating the marked trees to be on the dividing
ridge, instead of stating them to be on a spur of the dividing
ridge.
The decree, therefore, dismissing the plaintiff's bill, is
affirmed with costs.
Decree affirmed.