The practice in Kentucky to call a jury to ascertain the facts
in chancery causes is incorrect.
A suit in chancery by one who has the prior equity against him
who has the eldest patent is in its nature local, and if it be a
mere question of title, must be tried in the district where the
land lies. But if it be a case of contract or trust or fraud, it is
to be tried in the district where the defendant may be found.
If, by any reasonable construction of an entry, it can be
supported, the court will support it.
When a given quantity of land is to be laid off on a given base,
it shall be included within four lines forming a square as nearly
as may be, unless the form be repugnant to the entry.
If the calls of an entry do not fully describe the land, but
furnish enough to enable the court to complete the location by the
application of certain principles, it will complete it.
If a location have certain material calls sufficient to support
it and to describe the land, other calls less material and
incompatible with the essential calls of the entry may be
discarded. The rectangular figure is to be preserved if
possible.
If an agent locate land for himself which he ought to locate for
his principal, he is in equity a trustee for his principal.
This was an appeal from the decree of the Circuit Court of the
United States for the District of Kentucky in a suit in equity
brought by Watts, a citizen of Virginia, against Massie, a citizen
of Kentucky, to compel the latter to convey to the former 1,000
acres of land in the State of Ohio, the defendant having obtained
the legal title with notice of the plaintiff's equitable title.
The bill stated that the defendant Massie (the appellant) had
contracted with a certain Ferdinand Oneal to locate and survey for
him a military warrant for 4,000 acres in his name (which the
plaintiff afterwards purchased for a valuable consideration), and
to receive for his services in locating and surveying the same, the
sum of �50 which the plaintiff paid him. That the defendant located
the said warrant with the proper surveyor, and being himself a
surveyor, he fraudulently made a survey purporting to be a survey
of part of the entry, but variant from the same and contrary to
law, whereby the survey was entirely removed from the land entered
with the surveyor for the fraudulent purpose of giving way to a
claim of the defendant's which he surveyed on the land entered for
the plaintiff, whereby the plaintiff lost the land, and the
defendant obtained the legal title. That the land adjoins the Town
of Chillicothe, and is worth $15 an acre. The bill prays that the
defendant may be compelled to convey the
Page 10 U. S. 149
land to the plaintiff, or if that is not in his power, that he
make compensation in damages.
The defendant, by his answer, denied that he contracted with the
plaintiff to locate and survey the warrant in the name of Oneal,
but admits that in 1787 he was requested by W. Ellzey to locate the
warrant for Oneal; that Ellzey informed him he was not authorized
to make any special contract with the defendant for his services,
but he had no doubt, if he did the business, he would receive the
customary compensation, which was �12 10s. per 1,000 acres or
one-third of the land.
He admits that he made the entry, and that the plaintiff has
paid him the �50. But he denies that he made the survey improperly
or with a fraudulent intention. He says that in the year 1793, as a
deputy surveyor, he surveyed the land on the Scioto on which the
claim of Oneal depended, but not wishing to take upon himself the
construction of Oneal's entry, he merely meandered the river, and
referred the question to the principal surveyor, by whose
directions he made the survey for Oneal in 1796, and without any
instructions from Oneal or any agent for him. That when the entry
was made, the country had been but recently explored, and none of
the locators knew by survey the meanders of the Scioto. He does not
admit that the entry has been surveyed contrary to location, but he
surveyed it as he would have surveyed it for himself.
He admits he made an entry for himself and intended to
appropriate the vacant land, but it was not by any procurement of
his that his patent was prior to Oneal's. That the plaintiff did
not become wholly interested in the claim until long after the
survey was made.
After the defendant's answer came in, the plaintiff amended his
bill by making Anderson (the principal surveyor) a defendant, and
charged that if the survey for Oneal was made by the directions of
Anderson, as alleged by the defendant Massie, it was with a
fraudulent design on the part of Anderson to appropriate
Page 10 U. S. 150
to himself the land described in Oneal's entry, and that if he
had no design, he was still responsible for the consequences of the
illegal survey.
Anderson, by his answer, denies all fraud and most positively
denies that he gave Massie any instructions to make the survey, as
falsely stated in the bill. That the survey was made of 530 acres,
in part of the entry, which survey was returned to his (Anderson's)
office, and which he did not record for about the term of one year
from the time he received it, doubting whether the survey had been
properly made, but after a critical examination of the subject he
concluded that it was not improperly made and recorded it.
The plaintiff amended his bill again by charging that the
defendant Massie was the owner of Powell's entry, and had surveyed
and obtained a grant therefor, and calling upon him to answer when
he became the purchaser of Powell's right.
To this Massie answered that after surveying Oneal's entry in
the spring 1797, he purchased Robert Powell's survey, before which
time he had no interest in the land, and has sold the whole of it,
but made a conveyance of only a part.
There had been certain facts found in the cause by a jury
according to a practice heretofore adopted in chancery suits in the
courts of Kentucky, but the court ordered "that the facts found by
the jury should be set aside."
The following opinion of judge Innis (judge Todd being absent)
states the facts of the case so fully that nothing need be added in
stating the case.
"The complainant having acquired the equitable right to certain
lands conferred on Ferdinand Oneal by the State of Virginia as a
bounty for military services performed by him as an officer during
the Revolutionary War, has instituted this suit with a double
aspect, first to recover one thousand acres of land
Page 10 U. S. 151
which had been entered for Oneal on the Scioto River upon a
suggestion that the defendant Massie, who was the locator, had
wrongfully deprived him of the land by surveying Robert Powell's
entry so as to cover part of Oneal's land, and by a subsequent
entry and survey of his own, hath taken the balance. Secondly, if
the complainant shall establish his right to the land in contest
and cannot obtain a conveyance therefor, that the decree may be for
the value thereof in money. It appears from the pleadings in the
cause that the defendant Massie has purchased Powell's land, and
that he has appropriated, by entry and survey, the adjoining land.
The three following entries were made upon the Scioto River
adjoining each other."
" No. 480. 1787. August 13, Major Thomas Massie enters 1,400
acres of land beginning at the junction of Paint Creek with the
Scioto, running up the Scioto 520 poles when reduced to a straight
line, thence off at right angles from the general course of the
river so far that a line parallel thereto will include the
quantity."
" No. 503. Captain Robert Powell enters one thousand acres of
land beginning at the upper corner on the Scioto of Major Thomas
Massie's entry, No. 480, running up the river 520 poles when
reduced to a straight line, thence from the beginning, with
Massie's line so far that a line parallel to the general course of
the river shall include the quantity."
" No. 509. Captain Ferdinand Oneal enters one thousand acres
beginning at the upper corner on the Scioto of Robert Powell's
entry, No. 503, running up the river 520 poles when reduced to a
straight line, and from the beginning with Powell's line so far
that a line parallel with the general course of the river shall
include the quantity."
"Surveys have been made upon the entries of Thomas Massie and
Robert Powell, so as to cover almost the whole base of 1,560 poles,
the space which was allotted for the three claims on the river, and
530 acres of land have been surveyed for Oneal, by the defendant
Massie in part of his entry, which it is impossible upon any
construction he can
Page 10 U. S. 152
hold. To form a correct opinion in this case, the several
entries of Massie, Powell, and Oneal must be brought into one view,
and, as far as it is possible, consistent with the entries, to
ascertain the object and intention of the locator. It is evident
from the manner in which these entries are worded that the locator
had no doubt in his mind at the time the entries were made of
having given that space which would enable him to secure, by legal
surveys, the quantity of land located for each person. It becomes,
then, the duty of the court to consider the case with a reference
to this object. No difficulty arises as to the manner in which the
entry of Thomas Massie ought to be surveyed, the calls of his entry
being express and positive. His entry ought to have been surveyed
in the following manner: to begin, as he has done, at the junction
of Paint Creek, and the Scioto, and then to run up the river so far
as will ascertain the termination of the 520 poles called for on
the river, when reduced to a straight line. This will reduce his
base to a point below the first flooded land represented in the
connected plat, above the mouth of Paint Creek, thence he is to run
out at right angles with the general course of the river. The
unexpected bends in the Scioto River have induced such a
construction to be placed on the entries of Powell and Oneal by the
defendant Massie that, in executing the surveys of Thomas Massie
and Powell, he considered Oneal as being excluded from obtaining
any part of the land upon the base of 1,560 poles, the space
allotted for three entries."
"The contest in this case, in consequence of the manner which
has been pursued in making Massie's and Powell's surveys, rests
principally upon the construction which is to be given to Powell's
and Oneal's entries, and as the latter is dependent on the former,
equity requires that if it be possible to secure to each his
portion of land agreeably to their entries, it ought to be so
decided, provided it can be done consistently with the spirit of
the entries, and the real intention of the locator."
"From an attentive consideration of the entries, the
Page 10 U. S. 153
object of the locator was evidently to give to each of the
proprietors of the warrants an equal base on the river, and make it
the ruling principle in shaping the surveys. It only remains, then,
to be considered whether the words in the entries will bear such a
construction as to effectuate the object and secure the lands to
Powell and Oneal which the locator intended at the time he made the
entries."
"Powell's first call is to run up the River Scioto, and the
description given of the land contemplated to be covered by the
entry is that portion which shall lie within a line parallel to the
general course of the river. From a view of the Scioto River, as
laid down in the connected plat, and the shape which Thomas
Massie's land will assume when run out agreeably to his entry, it
becomes necessary, in order to give Powell the land parallel to the
general course of the river, to lay it off by commencing the survey
on the river at the extremity of the 520 poles above Massie, and
thence to run out at right angles to the general course of the
river so far that a parallel line to the river, extending to
Massie's back line and binding on Massie's lines, will include his
one thousand acres. Reverse this mode of surveying Powell's entry,
and begin at Massie's upper corner on the river and run out with
Massie's line, it will make Massie's line the governing principle
of the survey, and not the river, which construction will be
contrary to the true meaning expressed in the entry, the intention
of the locator, and place the survey on the land of Oneal, whose
interest, as a subsequent locator, is equally entitled to
protection with that of the prior."
"The rule adopted in construing this entry must justify the
manner of executing a survey agreeably thereto by running five
lines instead of four to circumscribe the land. This proceeds from
an accidental circumstance occasioned by the great bend immediately
above the mouth of Paint Creek, which renders it necessary to
comply with the governing principle in the entry for the land to be
'parallel to the general course of the river.' By thus executing
Powell's survey, a portion of land will remain on the river and
parallel thereto
Page 10 U. S. 154
sufficient to satisfy Oneal, the calls of whose entry are
similar to Powell's calling for him as he does for Massie."
"Oneal's survey ought therefore to have been executed in the
same manner as it is now decided. Powell's ought to have been made
by beginning at the termination of 520 poles on the river, and
thence to run off at right angles from that point."
"Having decided the manner in which the entries of Massie,
Powell, and Oneal ought to have been surveyed, it remains yet to
say what is the situation of the survey for 530 acres of land made
for Oneal and placed on the record book of the surveyor. To make
this act obligatory on the party, it was necessary that all the
acts done should have been performed or approved by Oneal himself
or some one of his assignees, or by some agent authorized for that
purpose. There is no evidence in the cause to this effect: the
placing the survey on the surveyor's book is therefore an
unauthorized and void act."
"In the case of
Wilson v. Mason in the late district
court, the court decided that a survey once recorded was not
afterwards in the power or control of the party. This opinion was
predicated on two facts found in that cause, that William Mason was
the agent of the defendant, and approved of what had been done by
registering the surveys of Mason although cautioned of his
danger."
"Upon this view of the case, the court is of opinion that the
complainant recover of the defendant one thousand acres of land, to
be laid off agreeably to the mode pointed out as the proper manner
for surveying Oneal's entry."
"That upon the defendant Massie's conveying the said one
thousand acres of land to the complainant, he, the complainant,
shall assign to the said defendant all his right in and to one
thousand acres of the warrant issued to the said Oneal. "
Page 10 U. S. 155
"So far as this suit relates to the defendant Anderson, it is
decreed and ordered that the bill be dismissed as to him with
costs, the court being of opinion he was improperly made a party.
It is therefore considered by the court that the defendant Anderson
recover of the complainant his costs by him in this behalf
expended."
"And afterwards, at the same term, the following order was made
herein. The court in pursuance of the opinion and decree delivered
in this cause on the eighth day of this month (December) doth order
that the surveyor of Ross County do go on the land in controversy
and lay off the same as follows: Thomas Massie's entry by beginning
at the mouth of Paint Creek, thence up the Scioto so far as will
amount to 520 poles when reduced to a straight line, and from each
end of this base at right angles from the general course so far
that a line parallel with that general course will produce the
quantity of fourteen hundred acres. Robert Powell's entry by
beginning at the upper corner of Thomas Massie's entry, that is,
520 poles from the mouth of Paint Creek, thence up the river so far
as will amount to 520 poles when reduced to a straight line, and
from the end of this base line, a line is to be run at right angles
to the general course of that portion of the river which is
occupied by the base line and from the beginning with the lines of
Thomas Massie -- that is, his second and third lines -- so far that
a line parallel to the general course of this base line will
produce the quantity of one thousand acres. Ferdinand Oneal's entry
by beginning at the upper corner of Robert Powell's entry when laid
off as aforesaid, thence up the Scioto so far as will amount to 520
poles when reduced to a straight line, and from the end of this
base line a line is to be run at right angles from the general
course of that portion of the river which is occupied by the base
line, and from the beginning with the second and third lines of
Powell so far that a line parallel to the general course of the
base line will produce the quantity of one thousand acres."
"And the court doth further order that the said surveyor
Page 10 U. S. 156
do make and bound the said survey of Oneal when laid off as
aforesaid, and make report of the metes and bounds and his
proceedings herein to the next court."
At May term, 1808, the surveyor having made his report, a final
decree was entered in conformity with the principles laid down in
the interlocutory order, from which the defendant appealed.
Page 10 U. S. 157
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
This suit having been originally instituted, in the court of
Kentucky for the purpose of obtaining a conveyance for lands lying
in the State of Ohio, an objection is made by the plaintiff in
error, who was the
Page 10 U. S. 158
defendant below, to the jurisdiction of the court by which the
decree was rendered.
Taking into view the character of the suit in chancery brought
to establish a prior title originating under the land law of
Virginia against a person claiming under a senior patent,
considering it as a substitute for a caveat introduced by the
peculiar circumstances attending those titles, this Court is of
opinion that there is much reason for considering it as a local
action and for confining it to the court sitting within the state
in which the lands lie. Was this cause, therefore, to be considered
as involving a naked question of title -- was it, for example, a
contest between Watts and Powell -- the jurisdiction of the Circuit
Court of Kentucky would not be sustained. But where the question
changes its character, where the defendant in the original action
is liable to the plaintiff, either in consequence of contract or as
trustee, or as the holder of a legal title acquired by any species
of
mala fides practiced on the plaintiff, the principles
of equity give a court jurisdiction wherever the person may be
found, and the circumstance that a question of title may be
involved in the inquiry, and may even constitute the essential
point on which the case depends, does not seem sufficient to arrest
that jurisdiction.
In the celebrated case of
Penn v. Lord Baltimore, the
Chancellor of England decreed a specific performance of a contract
respecting lands lying in North America. The objection to the
jurisdiction of the court in that case, as reported by Vezey, was
not that the lands lay without the jurisdiction of the court, but
that in cases relating to boundaries between provinces, the
jurisdiction was exclusively in the King and council. It is in
reference to this objection, not to an objection that the lands
were without his jurisdiction, that the chancellor says, "This
court therefore has no original jurisdiction on the direct question
of the original right of boundaries." The reason why it had no
original jurisdiction on this direct question was that the decision
on the extent of those grants, including dominion and political
power, as well
Page 10 U. S. 159
as property, was exclusively reserved to the King in
council.
In a subsequent part of the opinion, where he treats of the
objection to the jurisdiction of the court arising from its
inability to enforce its decree
in rem, he allows no
weight to that argument. The strict primary decree of a court of
equity is, he says,
in personam, and may be enforced in
all cases where the person is within its jurisdiction. In
confirmation of this position, he cites the practice of the courts
to decree respecting lands lying in Ireland and in the colonies if
the person against whom the decree was prayed, be found in
England.
In the case of
Arglasse v. Muschamp, 1 Vernon 75, the
defendant, residing in England, having fraudulently obtained a rent
charge on lands lying in Ireland, a bill was brought in England to
set it aside. To an objection made to the jurisdiction of the
court, the Chancellor replied,
"This is surely only a jest put upon the jurisdiction of this
court by the common lawyers, for when you go about to bind the
lands and grant a sequestration to execute a decree, then they
readily tell you that the authority of this court is only to
regulate a man's conscience, and ought not to affect the estate,
but that this court must
agere in personam only, and when,
as in this case, you prosecute the person for a fraud, they tell
you that you must not intermeddle here, because the fraud, though
committed here, concerns lands that lie in Ireland, which makes the
jurisdiction local, and so wholly elude the jurisdiction of this
court."
The Chancellor in that case sustained his jurisdiction on
principle, and on the authority of
Archer v. Preston, in
which case a contract made respecting lands in Ireland, the title
to which depended on the act of settlement, was enforced in England
although the defendant was a resident of Ireland and had only made
a casual visit to England. On a rehearing before Lord Keeper North,
this decree was affirmed.
In the case of
Earl of Kildare v. Sir Morrice
Page 10 U. S. 160
Eustace and Fitzgerald, 1 Vern. 419, it was determined
that if the trustee live in England, the chancellor may enforce the
trust although the lands lie in Ireland.
In the case of
Toller v. Carteret, 2 Vern. 494, a bill
was sustained for the foreclosure of a mortgage of lands lying out
of the jurisdiction of the court, the person of the mortgagor being
within it.
Subsequent to these decisions was the case of
Penn v. Lord
Baltimore, 1 Vez. 444, in which the specific performance of a
contract for lands lying in North America was decreed in
England.
Upon the authority of these cases and of others which are to be
found in the books, as well as upon general principles, this Court
is of opinion that in a case of fraud, of trust, or of contract,
the jurisdiction of a court of chancery is sustainable wherever the
person be found, although lands not within the jurisdiction of that
court may be affected by the decree.
The inquiry therefore will be whether this be an unmixed
question of title or a case of fraud, trust, or contract.
The facts in this case, so far as they affect the question of
jurisdiction, are that in 1787, the land warrant, of which Watts is
now the proprietor, and which then belonged to Oneal, was placed
without any special contract in the hands of Massie as a common
locator of lands. In the month of August in the same year, he
located 1,000 acres, part of this warrant, to adjoin a previous
location made on the same day for Robert Powell.
In the year 1793, Massie, as deputy surveyor, surveyed the lands
of Thomas Massie, on which Robert Powell's entry depended, and the
land of Robert Powell, on which Oneal's entry, now the property of
Watts, depended. On 27 June, 1795, Nathaniel Massie, the plaintiff
in error, entered for himself 2,366 acres
Page 10 U. S. 161
of land to adjoin the surveys made for Robert Powell, Thomas
Massie, and one Daniel Stull. The entry of Daniel Stull commences
at the upper corner of Ferdinand Oneal's entry on the Scioto, and
the entry of Ferdinand Oneal commences at the upper corner of
Robert Powell's entry on the Scioto, so that the land of Oneal
would be supposed from the entries to occupy the space on the
Scioto between Powell and Stull. Nathaniel Massie's entry, which
was made after surveying the lands of Thomas Massie and of Robert
Powell, binds on the Scioto and occupies the whole space between
Powell's survey and Stull's survey.
In the year 1796, Nathaniel Massie surveyed 530 acres of Oneal's
entry, chiefly within Stull's survey, and afterwards, in the spring
of 1797, purchased Powell's survey. Nathaniel Massie's entry is
surveyed and patented. In 1801, Massie received from Watts in money
the customary compensation for making his location.
It is alleged that Nathaniel Massie has acquired for himself the
land which was comprehended within Oneal's entry, and has surveyed
for Oneal land to which his entry can by no construction be
extended.
If this allegation be unsupported by evidence, there is an end
of the case. If it be supported, had the court of Kentucky
jurisdiction of the cause?
Although no express contract be made, yet it cannot be doubted
that the law implies a contract between every man who transacts
business for another at the request of that other and the person
for whom it is transacted. A common locator who undertakes to
locate lands for an absent person is bound to perform the usual
duties of a locator and is entitled to the customary compensation
for those duties. If he fails in the performance of those duties,
he is liable to the action of the injured party, which may be
instituted wherever his person is found. If his compensation be
refused, he may sue therefor in any court within whose jurisdiction
the person for whom the location was made
Page 10 U. S. 162
can be found. In either action, the manner in which the service
was performed is inevitably the subject of investigation, and the
difficulty of making it cannot oust the court of its
jurisdiction.
From the nature of the business and the situation of the
parties, the person for whom the location is made being generally a
nonresident and almost universally unacquainted with the country in
which his land is placed, it is the duty of the locator not only to
locate the lands but to show them to the surveyor. He also
necessarily possesses the power to amend or to change the location
if he has sufficient reason to believe that it is for the interest
of his employer so to do. So far as respects the location, he is
substituted in the place of the owner, and his acts done
bona
fide are the acts of the owner.
If, under these circumstances, a locator finding that the entry
he has made cannot be surveyed, instead of withdrawing it or
amending it so as to render it susceptible of being carried into
execution, secures the adjoining land for himself and shows other
land to the surveyor which the location cannot be construed to
comprehend, it appears to this Court to be a breach of duty, which
amounts to a violation of the implied contract, and subjects him to
the action of the party injured.
If the location be sustainable and the locator, instead of
showing the land really covered by the entry, shows other land and
appropriates to himself the land actually entered, this appears to
the court to be a species of
mala fides which will, in
equity, convert him into a trustee for the party originally
entitled to the land.
In either case, the jurisdiction of the court of the state in
which the person is found is sustainable.
If we reason by analogy from the distinction between actions
local and transitory at common law, this action would follow the
person, because it would
Page 10 U. S. 163
be founded on an implied contract or on neglect of duty.
If we reason from those principles which are laid down in the
books relative to the jurisdiction of courts of equity, the
jurisdiction of the court of Kentucky is equally sustainable,
because the defendant, if liable, is either liable under his
contract or as trustee.
The case, then, as presented to the Court, gives it
jurisdiction, and the testimony must be examined to ascertain how
far the bill is supported.
The entry of Thomas Massie begins at the junction of Paint Creek
with the Scioto and runs up the Scioto 520 poles, when reduced to a
straight line, thence off at right angles from the general course
of the river so far that a line parallel thereto will include the
quantity.
Respecting this entry there is no controversy.
Robert Powell enters 1,000 acres of land,
"beginning at the upper corner on the Scioto of Major Thomas
Massie's entry, No. 480, running up the river 520 poles, when
reduced to a straight line, thence from the beginning with Massie's
line so far that a line parallel with the general course of the
river shall include the quantity."
Then Ferdinand Oneal
"enters 1,000 acres of land, beginning at the upper corner on
the Scioto, of Robert Powell's entry, No. 503, running up the river
520 poles, when reduced to a straight line, and from the beginning
with Powell's line, so far that a line parallel with the general
course of the river shall include the quantity."
As Oneal's entry depends on Powell's, it is necessary to
ascertain the land taken by Powell before that of Oneal can be
accurately determined.
Had the general course of the Scioto continued
Page 10 U. S. 164
nearly the same, no difficulty would have been found in this
case. The surveys might have conformed literally to all the calls
of each entry, and each tract would have constituted nearly a
rectangular figure with a base of 520 poles on the river and a back
line parallel to that base. But the unexpected bends of the Scioto
have deranged the uniformity of this chain of locations and
produced questions of considerable intricacy respecting the ground
which must be covered by them.
Thomas Massie's entry being of 1,400 acres, and Powell's of only
1,000 acres, with a base of the same length on the river, it
probably was thought certain that Massie's upper line would extend
beyond Powell's land, and that the line of Powell, which was to run
parallel to the river, would interest Massie's upper line. Powell's
entry therefore calls to run from the river with Massie's line so
far that a line parallel to the general course of the river will
include the quantity. Upon actual survey, the course of the river
is found to be such that a line parallel thereto, drawn from the
end of Massie's line, would not include 200 acres of land. Under
these circumstances, Powell must lose between 800 and 900 acres of
land if his entry cannot be so construed as to extend beyond the
length of Massie's line.
From the peculiar situation of titles acquired under the land
law of Virginia, a law which offered for sale an immense unexplored
wilderness, covered with savages equally fierce and hostile,
leaving to the purchaser the right to place his warrant, which was
the evidence of his purchase, on any land not previously
appropriated, and requiring him to make his entries so certainly
that any other person might locate the adjacent residuum, it
followed inevitably that immense difficulties would occur and that
locations must often be lost or receive that certainty which the
law required from principles adapted to the general state of things
in the country, but which were not precisely foreseen when the
locations were made.
Page 10 U. S. 165
These principles have been laid down by the courts, and must be
considered as expositions of the statute. A great proportion of the
landed property of the country depends on adhering to them.
The great and equitable foundation on which they stand is this.
If by any reasonable construction of an entry it can be supported,
the courts will support it. This principle absolutely requires that
all discretion, with respect to the mode of surveying an entry,
should be surrendered. For if a location might be surveyed in
various ways, then it is vague, and no subsequent locator would
know how to enter the adjacent residuum. The court, therefore, is
compelled to say in what manner every location, which appears, in
its terms, to reserve some power in the locator to vary its form
shall be surveyed.
In the exercise of this essential and necessary power they have
declared that when a given quantity of land is to be laid off on a
given base, it shall be included within four lines, so that the
lines proceeding from the base shall be at right angles with it,
and the line opposite the base shall be parallel to it, unless this
form be repugnant to the entry.
The consequence of this principle is that if the calls of an
entry do not fully describe the land, but furnish enough to enable
the court to complete the location by the application of certain
principles, it will complete it.
It has also decided that if a location have certain material
calls sufficient to support it and to describe the land, other
calls less material and incompatible with the essential calls of
the entry may be discarded.
These principles, it is believed, will enable the Court to
ascertain in a reasonable manner the land covered by Powell's
location.
The beginning is the upper corner of Massie on the
Page 10 U. S. 166
Scioto. A base line upon the river is then given to consist of
520 poles, when reduced to a straight line. Massie's upper line, to
its whole extent, if necessary, is also given, and a back line
parallel to the base is given. The side line opposite Massie's
line, and the course from the termination of Massie's line to the
back line are wanting and are to be supplied by construction.
The material inquiry so far as respects the present cause is in
what direction shall Powell's upper line, extending back from the
river to the line parallel to the general course of the river, be
run? That line is not given, and is consequently to be supplied by
construction.
According to the uniform course of decisions, Powell's upper
line must project from the base at right angles with it, unless
there shall be some other call in the entry which controls this
general principle. It is contended that it is controlled by the
call to run with Massie's line from the beginning. Massie's line
not being at right angles with the base line, it is argued that
Powell's opposite line, discarding the rectangular principle, must
be parallel to the line from the beginning.
But the Court does not concur with the counsel for the plaintiff
in error in this opinion. The principle that the rectangular figure
is to be preferred to any other and is to be preserved whenever it
can be preserved originates in the necessity of adopting some
regular figure in order to give to locations that certainty which
is not always to be found in their terms, and in the superior
convenience of that figure over every other with respect to the
adjacent residuum. These motives apply to a part as well as to the
whole of an entry. If one location be made upon another so that the
lines of that other bind the entry on one side, and then a precise
line be called for from the beginning to run a certain distance,
from the end of which a line is to be drawn, and to continue until
a line, parallel to the first or base line, or to some given point
in
Page 10 U. S. 167
the lines of the person on whom the location is made, shall
include the quantity, the same respect for certainty and
convenience which induced originally the adoption of the
rectangular figure would seem to require its adoption with respect
to those lines which did not receive a different direction from the
positive calls of the location. On one side there might be several
different lines, but this would not seem to demand that on the
opposite side the same variety should be preserved. It would be
departing from the principle unnecessarily to require that the
lines of the opposite side of the tract should be multiplied in
order to be all parallel to the lines by which one side was
unavoidably bounded. To the Court it seems that the rectangular
principle is always to be preserved where it can be preserved --
that is, where there is no call in the entry applying to the lines
which control them, and that where it is necessarily departed from,
the departure should not be extended further than the necessity
requires.
In this particular case, the location does not call for a line
parallel to Massie's line, and, as Massie's line was to run at
right angles from the general course of the river and it was
obviously expected Powell's line would not extend the whole length
of Massie's line, it is clear that the locator expected that
Powell's upper line, when at right angles with the course of the
river, would be nearly parallel to Massie's line.
This may be considered as in some degree an auxiliary argument
in favor of the opinion which is entertained by this Court that the
circuit court did right in laying down the upper line of Powell at
right angles with his base line.
This line being established, it is of little importance to
Oneal's claim in what manner the remaining lines of Powell may be
run.
The call of the location, so far as respects the side binding on
Massie, is said to stop at Massie's northwestern corner. Is that
line to be continued?
Page 10 U. S. 168
The conclusive objection to it is that it would intersect the
upper line before the quantity was obtained, and would consequently
entirely defeat the call for a back line parallel to the course of
the river.
Is a line at right angles with the general course of the river
to be run from Massie's corner and continued until a line parallel
to the base line would include the quantity?
This would be less exceptionable, but it would be departing
further from the square, and might in some instances exhibit a plat
the breadth of which would not be one-third of its length. This
point, however, is not critically examined, because it is of very
little importance in the present cause. The upper line of Powell,
on which Oneal binds, would be the same as far as it now runs, and
should it be continued further, it would only take a small angle of
Oneal's survey as made by order of the circuit court.
The Court is of opinion that Powell's entry is rightly surveyed
by order of the circuit court, and it is an additional argument in
support of this opinion that, with the exception of the angle
unavoidably made by the interference of Massie, the general form of
the land approaches a square more nearly than if laid off in any
other manner.
If Powell's entry be correctly surveyed, Oneal's cannot be laid
off otherwise than it is.
Were it even to be admitted that the original survey made for
Powell was correct, it is entirely possible that the case of the
plaintiff would not be materially improved thereby.
Powell's back line would probably terminate on the river, in
which event that would be his upper corner on the Scioto, which is
called for as the beginning of Oneal's entry. Oneal then calls to
run on the river a distance of 520 poles on a straight line, and
with Powell's line so far as that a line parallel to the
general
Page 10 U. S. 169
course of the river shall include 1,000 acres. Either this entry
is rendered totally incapable of being surveyed in consequence of
the call for Powell's line or it must be so surveyed as to include
almost the whole Town of Chilicothe and to take a considerable part
of Massie's land.
It is, however, unnecessary to inquire what would be the rights
of the person claiming Oneal's entry, in that event, since the
Court is satisfied that the survey, as directed by the circuit
court, is correct.
The case, then, as made out in evidence, is this. Nathaniel
Massie, employed to locate a military warrant for Oneal, has
entered the warrant in pursuance of his engagement. On surveying
the entries on which that of Oneal depended, he either believed
that Oneal's entry was void from the repugnancy of its calls, or if
not absolutely void, was incapable of covering the land which,
according to legal construction, and the common understanding of
those who might read the entries, it must be considered as
covering; or he thought that by obtaining a prior patent for the
land, he might resist any claim which might afterwards be made by
Oneal or those claiming under him. If Massie really believed that
Powell's entry was properly surveyed and that Oneal's entry, as
made, could not be surveyed, it was his duty to amend it or, if
that was not his duty, to place it elsewhere. For omitting so to do
he is chargeable with such gross neglect of duty as to render him
responsible in damages had his construction of Oneal's location
even been correct. But if in this he was mistaken, it would be
dangerous in the extreme, it would be a cover for fraud which could
seldom be removed, if a locator, alleging difficulties respecting a
location, might withdraw it and take the land for himself. He,
however, has not withdrawn it except so far as it may be impliedly
withdrawn by the survey of 530 acres. With that exception, the
entry still covers the land on which it was originally placed, and
is still entitled to that land. But Massie, the agent of Oneal, has
entered and surveyed a portion of that land for himself, and
obtained a patent for it in his own name.
Page 10 U. S. 170
According to the clearest and best established principles of
equity, the agent who so acts becomes a trustee for his principal.
He cannot hold the land under an entry for himself otherwise than
as trustee for his principal.
So far, then, as Oneal's land is within Massie's survey, Massie
is a trustee for Oneal and his assignees, and upon the principle
stated in the early part of this opinion, the court of Kentucky had
jurisdiction of the cause.
But a part of Oneal's land is surveyed for Powell, and in a
contest between his assignees and Powell, the court of Kentucky
would have had no jurisdiction. This controversy, however, is not
with Powell; it is with Massie, who is the purchaser of Powell's
rights. The whole property being thus in the hands of Massie, and
the court of Kentucky being in possession of the cause, and having
clear jurisdiction of a part of it which decides the principle on
which the whole depends, that court did right in deciding the whole
cause and decreeing to the assignees of Oneal the whole land
originally included in the entry made for him.
Considerable doubts were entertained respecting the right of
Watts to more than the unsurveyed part of the entry. But a majority
of the Court is of opinion that he stands precisely in the place of
Oneal.
As Massie does not show that he had conveyed any of that part of
Powell's survey which is included within Oneal's entry previous to
the institution of this suit or even now, the allegation that he
has conveyed a part of Powell's survey could not furnish sufficient
matter for preventing the decree which was rendered.
The decree of the circuit court is affirmed with
costs.
