Lessee of Croghan v. Nelson

THIS case came up on a certificate of division in opinion between the judges of the court below. It was an ejectment brought in the Circuit Court of the United States for the district of Kentucky.

The case was this:

On the 16th of August, 1784, William Croghan, under whom the plaintiff claimed title, made the following entry: 'William Croghan, assignee, enters 1000 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 the 29th of 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. 18x W. 134 poles, S. 36x W. 200 poles, S. 48x W. 72 poles, S. 18x W. 14 poles, S. 18x W. 54 poles, S. 30x 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. 75x 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., &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., &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.

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 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 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 recognised 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.

It was argued by Mr. Underwood for Croghan's heirs, who contended that the entry was 'precise enough for others to locate other warrants with certainty on the adjacent residuum,' as required by the act of 1779. The fork of the creek being found, it would be easy for a subsequent locator to run the line to B. Arrived there, and desiring to locate the 'adjacent residuum' below, I think he has the means of knowing and ascertaining precisely the course which Croghan's line from B towards the Mississippi must pursue, and the distance in that direction.

Entries for land are addressed to the common good sense of those engaged in appropriating the vacant domain, and are to be 'special and precise,' so that subsequent locators shall not be deceived or deluded to their injury.

An entry is to be understood and taken as it would have been understood on the day it was made. See 1 Bibb. (Ky.), 35, 84; 2 Id., 105; Hard. (Ky.), 287.

Rectangular figure is not to be departed from without a strong indication of a contrary intent. 2 Bibb. (Ky.), 120; see also cases referred to under the 29th rule, in the index to 3 Bibb. (Ky.), under the head Entries.

A locator is not bound to give the best possible description, but it should be certain to a common intent, and not misleading. 2 Bibb. (Ky.), 144; 1 Id., 73, 64.

With these rules in the mind of a subsequent locator, wishing to ascertain the exact position of Croghan's 1000 acres, and with the entry before him, let us examine how he would proceed and reason upon the subject. He could not know the exact position of the lines without making a survey of the entry; but that is equally true in respect to every entry, no matter how special. He would know that the natural objects called for were to constitute boundaries of the survey, when made. Thus, a subsequent locator would know, by inspecting the entry, that the branch down towards the iron banks from the fork of the creek at A, upon the plat, to a point 500 poles, when reduced to a straight line, from the beginning, constituted part of the boundary. He would also know that Mayfield creek, from the fork at A down towards its mouth, constituted another portion of the boundary. With this knowledge, he would find no difficulty in locating the adjacent residuum, lying eastwardly of the branch and the creek, without interfering with Croghan's entry. Conceding that a subsequent locator would be ignorant of the true course of the line from B upon the plat towards the Mississippi river, until a survey was actually made, still, if he desired to enter the land west of the branch below Croghan's entry, and adjoining Croghan's tract, he could have done so with perfect safety by calling to adjoin Croghan, without giving the course. If a subsequent locator wished to enter land below the mouth of Mayfield creek, lying between the river and Croghan's entry, supposing there might be land thus situated not covered by Croghan's entry, he would find no difficulty in making such an entry without interfering with Croghan, by calling to bind on Croghan and the river. Thus it is manifest, that the 'adjacent residuum,' in the language of the act of 1779, all around Croghan's entry, might have been appropriated by a subsequent locator, without interfering with Croghan's entry. I therefore insist, it is 'certain to a common intent, and not misleading,' in the judicial language of the Appellate Court of Kentucky. A better description than that given will therefore not be required.

Mr. Underwood then proceeded to argue, that the line from B should run, not parallel with that part of the creek between A and the mouth of it, but parallel with the general course of the stream, including the part above A, because this would include only 835 acres, and the locator's intention was to enter 1000.

He then referred to a number of Kentucky cases to show, that the intention of the locator must be carried out, &c., &c.

Mr. Justice McKINLEY delivered the opinion of the court.