The following entry,
"I.T. enters ten thousand acres of land on part of a Treasury
warrant, No. 9739, to be laid off in one or more surveys lying
between Stoner's Fork and Hingston's Fork, about six or seven miles
nearly north east of Harrod's Lick, at two white ash saplings from
one root, with the letter K marked on each of them, standing at the
forks of a west branch of Hingston's Fork, on the east side of the
branch, then running a line from said ash saplings south forty-five
degrees east, one thousand six hundred poles, thence extending from
each end of this line north forty-five east down the branch until a
line nearly parallel to the beginning line shall include the
quantity of vacant land, exclusive of prior claims,"
is not a valid entry, there being no proof that the "two white
ash saplings from one root, with the letter K marked on each of
them, standing at the forks of a west branch of Hingston's Fork"
had acquired sufficient notoriety to constitute a valid call for
the beginning of an entry without further aid than is afforded by
the information that the land lies between those forks.
Page 23 U. S. 455
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is an appeal from a decree pronounced in the Court of the
United States for the Seventh Circuit and District of Kentucky
dismissing a bill brought by the plaintiff to obtain a conveyance
for a tract of land in possession of the defendant under an elder
grant, to which the plaintiff claims to have the superior equitable
title. The defendant rests on his patent, and as the entry under
which the plaintiff claims was made before that patent issued, the
cause depends essentially on the validity of the entry. It is in
these words:
"Dec. 24, 1782. John Tabb enters 10,000 acres of land on part of
a Treasury warrant, No. 9739, to be laid off in one or more
surveys, lying between Stoner's Fork and Hingston's Fork, beginning
about six or seven miles nearly northeast of Harrod's Lick, at two
white ash saplings from one root, with the letter K marked on each
of them, standing at the forks of a west branch of Hingston's Fork,
on the east side of the branch, then running a line from said ash
saplings, south 45 degrees east, 1,600 poles, thence extending from
each end of this line north 45 east, down the branch, until a line
nearly parallel to the beginning line shall include the quantity of
vacant land, exclusive of prior claims."
The counsel for the defendant insists that this
Page 23 U. S. 456
entry is invalid because it does not describe the land with that
certainty which is required by the land law of Kentucky. They
contend that the description given to find the beginning is false
and calculated to mislead a subsequent locater.
Harrod's Lick, Stoner's Fork, and Hingston's Fork are proved to
have been objects well known by those names at the date of the
entry, and serve as a general description of the country in which
the land lies, but it is not shown that the two white ash saplings
from one root, with the letter K marked on each of them, standing
at the forks of a west branch of Hingston's Fork, had acquired
sufficient notoriety to constitute a valid call for the beginning
of an entry without further aid than is afforded by the information
that the land lies between these forks. Its identity is proved, but
the decisions on the act of 1779 require notoriety as well as
identity. The plaintiffs' counsel maintain that there are
descriptive words in the entry sufficient to bring a person, using
reasonable diligence and searching for this beginning, near enough
to it to find the two white ash saplings. Those descriptive words
are
"Beginning about six or seven miles nearly northeast of Harrod's
Lick at two white ash saplings, &c., standing at the forks of a
west branch of Hingston's Fork, on the east side of the
branch."
The information which is to guide a subsequent locater to the
white ash saplings is the course and distance from Harrod's Lick
and the forks of a west branch of Hingston's Fork.
A survey was made by the order of the court,
Page 23 U. S. 457
and the plat shows that the saplings mentioned in the entry are
three miles and one hundred and forty-five poles from Harrod's
Lick, and that the course which leads to them is north 53 degrees
east. The real distance, then, is about one-half the distance
called for in the entry, and the course varies eight degrees.
To obviate the objection founded on this variance, the plaintiff
alleges the distinction between the descriptive and locative calls
of an entry. The purpose of the first is to bring the subsequent
locater into the neighborhood of the land he means to avoid, and
that of the second is to find the land already appropriated, so as
to enable him to appropriate the adjacent residuum. The precision,
therefore, which is necessary in a locative call has never been
required in that which is descriptive.
The correctness of this principle is not controverted. Still it
is necessary that the descriptive calls should designate the place
so nearly as to give information which would enable a subsequent
locater of ordinary intelligence to find the land previously
entered by making a reasonable search. It will not be pretended
that in such a case as this, exactness in distance or in course
would be indispensable to the validity of the entry, but distance
and course are both intended to lead to the ash saplings, and if,
unaided by other description, could alone be regarded by the person
who should search for them. He would pursue a northeast course at
least six miles from Harrod's Lick, and not finding a western
branch
Page 23 U. S. 458
of Hingston, would search for such a stream in every direction
from the place to which he was conducted by his course and
distance. In an unexplored country covered with cane and other
wood, it would be extremely difficult to find an object far from
being conspicuous at a distance of two or three miles, and would
require more time and labor than ought to be imposed on a person
desirous of appropriating the adjacent residuum. The counsel for
the plaintiffs would not attempt to support such an entry, but they
contend that the error in both course and distance is corrected by
other parts of the entry and by the situation of objects to which
the attention is directed.
The land is required to lie between Stoner and Hingston, and the
person who should pursue a northeast direction from Harrod's Lick
in search of it would strike Hingston at the distance of five and
one-eighth miles. He would consequently know that he had passed the
ash saplings, and would return in search of them. His search would
be directed to a western branch of Hingston, at the forks of which
the two white ash saplings would be found. It is contended that
this description would lead the inquirer to the mouth of Clear
Creek, proceeding up which he would find at one of its forks the
white ash saplings at which Tabb's entry begins.
If this statement was strictly accurate, there would certainly
be great force in the argument founded on it. With certain
information that Clear Creek was called for in the entry and
that
Page 23 U. S. 459
its beginning was at a place so well described as to be known
when seen, it might not, perhaps, be too much to require the person
desirous of acquiring adjacent land to trace that creek to the
forks at which the saplings stand. But the inquirer is not directed
to Clear Creek. He is directed to a western branch of Hingston, and
two branches empty into that stream, the one above and the other
below the point at which a northeast course from Harrod's Lick
would strike it and about equidistant from that point. There is no
expression in the entry which would, in the first instance, direct
the inquirer to Clear Creek, on which the saplings stand, in
preference to Brush Creek, on which they do not stand. His
attention would be rather directed to Brush Creek by a circumstance
which is undoubtedly entitled to consideration and has always
received it in Kentucky. It is this: Clear Creek had, at the time
this entry was made, an appropriate name, which distinguished it
from the other western branches of Hingston, and a locater,
intending to place his beginning on that creek, might be reasonably
expected to call it by its appropriate name and not to refer to it
by a general description which it possessed in common with many
other streams. The inquirer therefore would proceed in the first
instance, to Brush Creek, because that creek would be designated,
when Tabb's entry was made, only as a western branch of Hingston.
The plaintiff contends that this error would soon be corrected,
because the entry calls for a northeast course to run down the
branch, and Brush
Page 23 U. S. 460
creek bends so much at a small distance from its mouth as to
satisfy the inquirer that this could not be the stream intended by
the entry. With the plat before us, we can readily make this
discovery. But a person unacquainted with the course of Brush Creek
would not make it until he had proceeded up it a considerable
distance. He could not know till he had done so that the creek
would not again change its course and pursue a southwestern
direction. If, after making this discovery, he should go to Clear
Creek, he would find its first course from Hingston a very
discouraging one; nor would its course be adapted to the call of
the entry until he came within a very short distance of the fork at
which the saplings stand. Add to this Clear Creek appears to fork
several times before reaching the saplings, and at each of these
forks an accurate search must be made before the inquirer would
proceed further up the creek.
The course and distance from Harrod's Lick mentioned in the
entry are calculated to mislead a person desirous of knowing the
land it designates, and although these errors might unquestionably
be corrected by other parts of the description which would conduct
us with reasonable certainty to the beginning, it may well be
doubted whether the whole of this entry, taking all its parts
together and combining them, contains such reasonable certainty.
Had it been now for the first time brought before a court for
adjudication, it is liable to such great and serious objections
that it would most probably be
Page 23 U. S. 461
pronounced invalid. But the highest court of Kentucky has
already given this decision, and this Court has always conformed to
that construction of the legislative acts of a state which has been
given by its own courts. This general principle is entitled to
peculiar consideration when it applies to an act which regulates
titles to land.
The case of
Cochran v. Thomas, reported in Hardin 261,
depended on the validity of this entry, and in that case the court
decided against its validity. The authority of this decision has
been questioned on several grounds.
1st. It was made by only two judges, when the court consisted of
four, the others being interested.
Had a contrary opinion been avowed by both or either of the
other judges or by any judge since this decision was made, its
authority would undoubtedly be much impaired, if not entirely
annulled. But no such contrary opinion has been expressed, although
the decree in
Couchman v. Thomas was pronounced in the
spring term of 1808. Since then it was made by a tribunal which was
at the time legally constituted, and has remained unquestioned for
sixteen years, this Court must admit its authority in like manner
as if it had received the formal approbation of a majority of the
judges.
2d. A second objection is that it is a single decision, and the
courts of Kentucky do not consider themselves as bound by a single
decision if its principles are believed on more mature
Page 23 U. S. 462
deliberation to be unsound. Those courts, we are informed, have
often given different decisions on the same entry when brought
before them in a different case prepared with more care.
That different decisions will be often made on the same entry
can excite no surprise when it is recollected that the validity of
an entry does not depend entirely on its own terms, but on the
application of those terms to external objects and the general
notoriety of those objects as proved by the testimony in each case.
If in one case the party claiming under an entry had neglected to
prove the notoriety of some material call by the notoriety of which
its certainty was to be established, in consequence of which defect
the entry was declared to be invalid, this could constitute no
reason for pronouncing the same decision in another case between
different parties who had been careful to bring before the court
ample testimony of the fact on which the cause must depend. This
difference of decision would constitute no difference of
principle.
But the Court can perceive no new testimony in the case under
consideration which can vary it to the advantage of the plaintiff
from the case of
Couchman v. Thomas.
It may be very true that a single decision cannot be permitted
to shake settled principles and that this Court ought not to
consider one judgment as overturning well established doctrines and
introducing a new course of opinion. But certainly a decision on
the very point which has remained for many years unquestioned has
the
Page 23 U. S. 463
first impression in its favor, and must be proved to overturn
established principles before this Court can disregard it.
The land law of Kentucky requires that the holder of a land
warrant shall locate it "so specially and precisely that others may
be enabled with certainty to locate other warrants on the adjacent
residuum."
In construing this provision of the law, courts have always
inclined to support entries where this inclination could be
indulged consistently with the provision itself, but they have
always supposed a reasonable degree of precision and certainty to
be indispensable to the validity of every entry.
They have laid down great general principles, in the application
of which to particular cases the shades of difference are as
numerous and as nice as in the application of the principle that
the intention of the testator shall govern to the words of a
will.
The description of the land to be acquired, which every entry
must contain, may be divided into general and special. The general
description must be such as to bring the holder of a warrant to be
located into the neighborhood of the land already appropriated, and
such as to enable him to find that land with reasonable diligence;
the special description, or, in the technical language of the
country, the locative calls of the entry, must be such as to
ascertain and identify the land. All the cases recognize these
principles and claim to come within them.
Page 23 U. S. 464
The counsel for the plaintiff has cited many cases in which
entries have been sustained although the whole description they
contain has not been precisely accurate.
The Court has examined these cases, and is of opinion that in
all of them, although the description may be in part defective and
uncertain, such defect and uncertainty have been cured by other
calls which afford all the information that could be reasonably
required. An example of this is furnished by the case of
Taylor
v. Kincaid, Hardin 82. The entry was made "on the head of
Willis Lee's Branch, four miles from Leesburg," and was sustained
although the head of the branch was in truth eleven miles from
Leesburg. In this case, however, the mistake in the distance was
corrected by the notoriety of the object itself. Willis Lee's
Branch, at the time and before the location was made, was so
notorious that the inquirer could not be misled by the mistake in
the distance. That a part of the description which is erroneous may
be discarded if the object called for is itself so notorious that
it requires no aid from description and cannot be mistaken, and
that such part will not vitiate the entry may be admitted without
impugning the judgment in the case of
Couchman v. Thomas.
Tabb's entry contains no descriptive call which would conduct the
inquirer to the white ash saplings he is in search of, and the
saplings themselves were not objects of sufficient notoriety to
cure the defects in the general description.
Decree affirmed.