In making an entry of land, where mistakes occur which are
occasioned by the impracticability of ascertaining the relative
positions of the objects called for, the court will correct those
mistakes so as to carry out the intentions of the locator.
The case was this:
On 16 August, 1784, William Croghan, under whom the plaintiff
claimed title, made the following entry:
"William Croghan, assignee, enters 1,000 acres of land, part of
a military warrant, No. 2023, beginning at a fork of Mayfield
Creek, about two miles by water above Fort Jefferson, where a
branch, occasioned by the high waters from the Mississippi, runs
out of said creek, and at high water empties into the river at the
upper end of the iron banks, from said beginning 500 poles, when
reduced to a straight line, and then off from the branch towards
[the] Mississippi on a line parallel to Mayfield Creek, until a
line from the extremity of said line, parallel with the first line,
will strike Mayfield Creek, to include the quantity."
On 29 November, 1826, a patent was issued to Croghan by the
Governor of Kentucky, which described the land as follows:
"Beginning at a fork of Mayfield Creek, occasioned by high water
from the Mississippi River, and which creek or bayou empties into
the Mississippi at the upper end of the iron banks, on a walnut,
sweet gum, and ash standing on the west bank of the creek; running
thence down the bayou or branch aforesaid with the meanders
thereof, S. 18� W. 134 poles, S. 36� W. 200 poles, S. 48� W. 72
poles, S. 18� W. 14 poles, S. 18� W. 54 poles, S. 30� W. 120 poles;
thence S. 110 poles, to two ash trees, a hackberry, and red bud on
the west bank of the bayou; thence N. 75� W. 206 poles, to an elm,
a sycamore, and box elder on the bank of the Mississippi River;
thence up the same, with its meanders, and binding on it at low
water mark, N. &c., to a walnut and two cotton wood trees at
the mouth of Mayfield Creek; thence up the creek, with the several
meanders thereof, and binding on the same at low water mark
&c., to the beginning."
In 1830, Nelson took out a patent for the fractional northwest
quarter of section 32 &c., containing 103 acres.
The whole dispute being one of location, it is impossible to
understand the opinion of the court without a map or diagram.
Page 44 U. S. 188
image:a
A, B, C, D, is the survey made for Croghan. A being the
beginning station, and D the mouth of Mayfield Creek. The defendant
contended that the plaintiff's line should run from B to E, and
from E to D, in which case it is manifest that it would not
include
Page 44 U. S. 189
the land granted to Nelson, the line B E being parallel to a
line drawn from A to D.
Upon the trial, the counsel for the defendants asked the court
to instruct the jury, that
"If they believed from the evidence that the course of Mayfield
Creek, from A to D, is correctly laid down, then the line from B
towards the Mississippi River should be run parallel to that to
conform to the entry, and if, in running that parallel line, they
shall believe from the evidence that the improvement of the
defendants is left out, they ought to find for the defendants."
But the court was divided in opinion on the point, whether the
second line called for in the entry should run from B to E, or
whether the line from B to C should be taken, and recognized as the
true and proper line, it being the line on which the patent was
founded. One judge being of opinion, that for all the land south
and west of a line from B to E the patent was void, and the other
judge being of a contrary opinion.
Upon this point, the case came up.
Page 44 U. S. 190
MR. JUSTICE McKINLEY delivered the opinion of the Court.
This is a case certified to this Court from the Supreme Court
for the District of Kentucky.
The plaintiffs brought an action of ejectment, in that court,
against the defendants, and to support their action, they read to
the jury a patent for 1,000 acres of land, granted by the State of
Kentucky to Charles Croghan, bearing date 29 November, 1826, and
proved title in themselves by the will of the said Charles Croghan.
The plat marked A was shown to the jury, and the surveyor proved,
that the fork of Mayfield Creek, at the letter A, was correctly
laid down; that five hundred poles, on a straight line, on the
branch leading from Mayfield Creek, would extend the line to letter
B on
Page 44 U. S. 191
the plat, where one of the patent corners was found, and that
the plat truly represented the land granted by the patent.
The defendant then read the following entry of William Croghan,
assignee, for 1,000 acres, dated 16 August, 1784, on which the
patent is founded, to-wit:
"William Croghan, assignee, enters 1,000 acres of land, part of
a military warrant, No. 2023, beginning at a fork of Mayfield
Creek, about two miles by water above Fort Jefferson, where a
branch, occasioned by the high waters from the Mississippi, runs
out of said creek, and at high water empties into the river at the
upper end of the iron banks; from said beginning 500 poles, when
reduced to a straight line, and then off from the branch towards
the Mississippi, on a line parallel to Mayfield Creek, until a line
from the extremity of said line, parallel with the first line, will
strike Mayfield Creek, to include the quantity."
The defendants then offered in evidence a patent from the State
of Kentucky to Hugh Nelson, for 103 acres of land, bearing date 17
December, 1830; and proved by the surveyor, that the beginning of
the entry was at A, on the plat, and that the end of the first line
was at B, and if a line were run from B towards the Mississippi
River, in a direction parallel with the general course of Mayfield
Creek, for twelve miles above the fork at A, it would be the red
line extending from the letter B to the Mississippi River at F. It
was also proved, if a line were run from the corner at B parallel
with Mayfield Creek, below the fork, to the letter D, at the mouth
of the creek, it would run from B to E, and leave out the land
claimed by the defendants. The surveyor also proved that the
various lines on the plat were correctly laid down from actual
survey.
"The counsel for the defendants then prayed the court to
instruct the jury, if they believe, from the evidence, that the
course of Mayfield Creek from A to D is correctly laid down, then a
line from B towards the Mississippi River should be run parallel to
that line, to conform to the entry, and if, in running that
parallel line, they shall believe, from the evidence, that the
improvement of the defendants is left out, they ought to find for
the defendants. But the court were divided in opinion on the point,
whether the second line called for in the entry should run from B
to E, or, whether the line from B to C should be taken and
recognized as the true and proper line, it being the line on which
the patent was founded. One of the judges being of the opinion,
that for all the land south and west of a line from B to E the
patent was void; and the other judge being of a contrary opinion.
They were also divided in opinion, for the foregoing reasons,
whether the foregoing instructions ought to be given or
refused."
By a statute of Kentucky passed 26 December, 1820, it is
required that all surveys thereafter to be made on entries west of
Tennessee River should be run according to the calls of the entry.
And
"to enable the register to ascertain whether the survey is made
according to entry, a copy of the entry shall be returned to the
register's
Page 44 U. S. 192
office, with the plat and certificate of survey, and any patent
issuing on a survey made contrary to the location shall be void to
all intents and purposes, so far as the same may be different and
variant from the location."
The survey in this case was made on 5 November, 1825, and the
patent under which the defendants claim, dated 17 December, 1830,
was granted for land sold by the state subsequent to the date of
the patent under which the plaintiffs claim title, and which covers
part of the land claimed by the defendants. This brings in question
the legality of the survey, and the construction of the entry on
which it was made, and leads to an examination of the points
certified for our determination.
But before we enter on that duty, it will be proper to consider
the circumstances in which the locator was placed when he made the
entry. It was proved in the circuit court that, along this branch,
there was a very dense cane brake, and the greater part of the land
covered by the patent is still a dense cane brake. It was also
proved that a line run parallel with the general course of Mayfield
Creek, for twelve miles above the fork, and crossing the branch, at
the termination of the 500 poles, from A to B, on the plat, would
strike the Mississippi River at F on the plat, a considerable
distance below the corner called for in the patent at the letter C.
And it appears by the plat that the creek continues to run nearly
the same course for 300 or 400 yards below the fork, and then runs
north of northwest for about 300 poles. Now we have a right to
infer from the facts proved that all the land included in Croghan's
patent, and all the river bottom above Mayfield Creek at the date
of the entry was a dense cane brake, because, if an object,
permanent in its nature, is proved to exist at the time of the
trial, it is fair to infer that it existed at the time the entry
was made.
Crochet v. Greenup, 4 Bibb 158. The history and
topography of the great valley of the Mississippi proves
satisfactorily, that where there is a canebrake now there was one
sixty years ago, and this fairly induces the belief that the cane
upon the rich and alluvion lands is coeval with the oldest trees of
the forest. As the locator had the means of ascertaining the course
of Mayfield Creek above the fork, where it ran across the high
lands, and where there was no cane, it is reasonable to suppose,
from the calls of the entry, that he believed that Mayfield Creek,
below the fork, ran nearly at right angles to the branch in its
general course to the river. And he had a right, from the
circumstances also to believe that the distance from the fork of
the creek to the river was about two miles, when in fact it was
less than one mile.
It is obvious from these circumstances, and the calls of the
entry, that the locator believed the survey to be made upon it
would approach as near to a parallelogram as the irregularity of
the two natural boundaries would permit. We are led to the
conclusion,
Page 44 U. S. 193
therefore, that these mistakes were all occasioned by the
impracticability of ascertaining the relative positions of the
objects called for, and the courses and distances of the lines
necessary to include the quantity of land specified in the entry.
But mistakes of this character have been corrected, as far as
practicable, by the courts of Kentucky, in giving construction to
entries, and particularly in two recent cases like this between
military claims and purchases from the state.
Rays v.
Woods and
Daniel v. Allison, 2 B.Mon. 224. Keeping
these mistakes in view, we will proceed to give construction to the
entry. The call to run from the termination of the base line at B,
500 poles from the fork of the creek at A, and off from the branch
towards the Mississippi on a line parallel to Mayfield Creek, until
a line from the extremity of said line, parallel with the first
line, will strike Mayfield Creek, to include the quantity,
presupposes that a line from the termination of the base line on
the branch, parallel with Mayfield Creek, to include the quantity,
would terminate before it reached the river, otherwise the locator
would have called to run to the river. But it was found, when they
made the survey, that the whole area, bounded by the branch, from
the termination of the 500 poles, Mayfield Creek to its mouth, and
the Mississippi River, down to the letter E, the point where a line
running from the termination of the base line, parallel to Mayfield
Creek, strikes the river, would include but 887 acres, and when
reduced to straight lines, would present a rhomboidal figure, with
two extremely acute, and two extremely obtuse angles, instead of
the figure which must have been in the mind of the locator when he
made the entry. We might, therefore, upon the authority of the
cases referred to in 2 B.Mon. sustain the survey on the ground of
the mistakes of the locator, evidently made under the influence of
causes well calculated to mislead him. But there are other reasons
and other authorities upon which this entry and survey may be
sustained. It is a well settled rule of construction that where
there are calls in an entry repugnant to each other, those which
are inconsistent with the main intention of the locator, manifested
by the words of the entry, shall be rejected to give effect to the
entry. For example, distance shall prevail over course, where it
appears by other calls in the entry the course has been mistaken.
Smith v. Harrow, 1 Bibb 104. A call to include a natural
object will prevail over a mistaken distance called for to reach
the object.
Preeble v. Vanhoozer, 2 Bibb 118;
McIver v.
Walker, 9 Cranch 173. Testing the entry by these
rules, has it been properly surveyed?
Three of the lines are natural and permanent boundaries, except
the line on the river, which may be extended in length; the fourth
is artificial and movable. It has been already shown that a line
from the termination of the line on the branch, at B, to the river
at E, and thence up the river to the mouth of Mayfield Creek, will
not
Page 44 U. S. 194
include the quantity of land called for in the entry. If it is
practicable, by a reasonable construction of the entry, to give the
whole quantity of land called for, it is the duty of the court to
give such construction. The mistakes referred to have defeated the
intentions of the locator, no doubt, as to the figure of the
survey; but, like all prudent locators, he provided, as far as he
could, against the influence of such mistakes, by requiring that
the two last lines of the survey should be so run as to include the
quantity of land called for in the entry. To these two lines he
gave course, but gave no specific distance to either, that they
might be run long enough to include the quantity. The first of
these lines was to run from the termination of the base line at B,
"off from the branch towards the Mississippi, on a line parallel to
Mayfield Creek," but no specific distance is given, nor is any
natural object called for as the termination of this line. Its
termination was to be governed, therefore, by the relative
positions of the objects previously called for, and the actual
distance of the line, on the branch, from the river, and by the
necessary course and distance that the first and second of these
two lines should run to include the quantity, and therefore he
continues the call by saying, "until a line parallel to the first
(the base line) will strike Mayfield Creek, to include the
quantity." The word "until," in grammatical construction, modifies
and qualifies the words used to give course and distance, and, in
legal construction, the call for course must yield to the call for
quantity, the latter being the most important call in the
entry.
The great and leading object of every entry is to obtain the
quantity of land specified in it; every other call, therefore, must
be regarded as intended to effect this principal object, and as
subordinate thereto. The call, to run a line parallel with the
first, or base line is therefore repugnant to the call to include
the quantity, and must be rejected. Because, if this line had been
run parallel with the baseline, the quantity of land would not have
been included. And for the same reason, the words "on a line
parallel to Mayfield Creek" must be rejected, they being also
repugnant to the call to include the quantity. The survey, has
therefore, in our opinion, been made in conformity with the entry,
by running from the mouth of Mayfield Creek, down the river, to the
corner at C, that being the distance required to include the
quantity, and the line from B, another corner, has been properly
run to C, that being the course and distance necessary to close the
survey and to include the quantity of land called for in the entry.
It is the opinion of this Court, therefore, that the circuit court
ought to have refused the instruction prayed for by the defendant's
counsel.
It is ordered that it be certified to the circuit court that the
line from B to C "should be taken and recognized as the true and
proper line," and that the instructions prayed by the defendant's
counsel ought to be
Refused.
Page 44 U. S. 195
MR. JUSTICE McLEAN.
"Croghan, assignee, enters 1,000 acres of land, part of a
military warrant, No. 2023, beginning at a fork of Mayfield Creek,
about two miles by water above Fort Jefferson, where a branch
occasioned by the high waters of the Mississippi runs out of said
creek, and at high water empties into the river, at the upper end
of the iron banks, from said beginning, 500 poles when reduced to a
straight line, and then off from the branch towards the
Mississippi, on a line parallel to Mayfield Creek, until a line
from the extremity of said line, parallel with the first line, will
strike Mayfield Creek to include the quantity."
By a statute of Kentucky passed in 1820, all entries on military
warrants west of the Tennessee River are required to be surveyed
agreeably to their calls, and any survey and patent which shall
cover more land then the entry calls for, is declared to be void as
to such surplus. There can be no objection to the validity of this
law, as it impairs no right.
Under this statute, the court were requested to give a
construction to the entry in question. The prayer was that the
court should instruct the jury
"If they believe from the evidence that the course of Mayfield
Creek, from A to D, the letter A being at the fork of the creek,
the beginning of the entry, and the letter D at the mouth of the
creek, is correctly laid down, then the line from B (the
termination of the first line of 500 poles) towards the
Mississippi, should run parallel to that, or (in other words) to
Mayfield Creek, to conform to the entry."
The only dispute is as to the second line, which is "to run from
the branch towards the Mississippi, on a line parallel to Mayfield
Creek." And this was the instruction prayed for, and which was
rejected by the court. Had the instruction been in the very words
of the entry, there would not have been a closer conformity with
it.
The disputed line was called for by the entry "to run parallel
to Mayfield Creek." Now one line to be parallel to another must be
equidistant from it. And that was what the instruction asked. From
the words of the call in the entry, as to this line, the creek from
the forks to the mouth must have been intended, as the line
designated could only be parallel to that part of the creek.
The third line called for in the entry was to run from the
termination of the line parallel to Mayfield Creek, and "parallel
with the first line, so as to strike Mayfield Creek to include the
quantity." As this line strikes the creek at the mouth, and runs on
the bank of the Mississippi, it cannot be varied to include in the
survey the thousand acres called for in the entry. There is a
deficiency of one hundred and acres, which covers the land in
controversy. And the question is whether the second lines called
for in the entry, to run parallel with Mayfield Creek, can be
disregarded, and extended
Page 44 U. S. 196
so as to include the lands of the defendants and the quantity
called for in the entry.
In my opinion, this can no more be done than the beginning
called for in the entry can be changed, or the first line of the
survey. The third line up the Mississippi was, by the entry, "to
strike Mayfield Creek so as to include the quantity."
It is admitted that Mayfield Creek, with its meanders, forms the
closing line of the survey. I know of no principle in the land law
of Kentucky which authorizes a court to disregard the specific
calls of an entry, so as to include the quantity designated. The
locator was, no doubt, deceived as to the ground covered by his
entry. The line called to be run so as to include the thousand
acres being bounded by the Mississippi, could not be varied so as
to answer the calls of the entry for quantity. This was the
misfortune of the locator which is chargeable only to himself. It
is clear that he cannot disregard the calls of the entry, on any
other line, so as to include the quantity.
The injustice of such a construction to the defendants seems to
me to be clear. Finding the claim of Croghan's entry designating in
plain terms its boundaries, and knowing that by the law he was
limited to the calls of his entry, his survey not having been made,
they purchased the adjacent residuum. And I have no doubt that, by
the well established principles of the land law in Kentucky, their
title is good, and therefore the instruction prayed for should be
given.
In
Rays v. Daniels, 2 B.Monr. 222, the court says in
reference to this district of country, where a patent has issued,
the proof of a variance in the survey from the entry, so as to make
the patent void, for the land not included in the entry, devolves
on the adversary claimant. But they do not say in that or in any
other case that where the locator is limited strictly to the calls
of his entry, by a subsequent entry or, as in the present case, by
an express statute, that the call for quantity controls the
specific calls of the entry. There is no principle better settled
in the land law than that the calls in a survey and patent are not
affected by quantity. If no private and paramount right be
interfered with, whether the survey and patent contain more or less
than the quantity called for, it is equally valid. An entry cannot
call for a greater number of acres than is authorized by the
warrant on which it is made; but where the boundaries called for
are specific and the locator is limited strictly to the boundaries
of his entry, in making his survey, he can no more disregard them
than he can disregard the boundaries called for in his patent.
Palpable mistakes in the entry, such as a call for east instead
of west, which is apparent by other calls in the entry, may be
corrected. But where there is no mistake or uncertainty in the
calls, to vary them is to make a new entry. This, I conceive, no
court has
Page 44 U. S. 197
power to do. An entry, like every other instrument of writing,
must be construed by the words used. And these words can never be
extended, by construction, so as to infringe upon subsequent and
bona fide entries.