Lessee of Croghan v. Nelson/Opinion of the Court

This is a case certified to this court from the Circuit 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 1000 acres of land, granted by the state of Kentucky to Charles Croghan, bearing date the 29th of 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 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 1000 acres, dated 16th of August, 1784, on which the patent is founded, to wit: '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.' The defendants then offered in evidence a patent from the state of Kentucky to Hugh Nelson, for 103 acres of land, bearing date the 17th of 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 the 26th of 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 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 the 5th day of November, 1825; and the patent under which the defendants claim, dated the 17th day of 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 (Ky.), 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, 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, &c. v. Allison, 2 B. Mon. (Ky.), 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 and others, 1 Bibb (Ky.), 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 (Ky.), 118; McIver v. Walker and another, 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 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 base line, 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 recognised as the true and proper line,' and that the instructions prayed by the defendant's counsel ought to be refused.

Mr. Justice McLEAN.

'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 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 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 tht 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 et al., 2 B. Monr. (Ky.), 222, the court say 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 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.