David Bryan and John C. Owings v. Caleb Wallace, 1 Hughes 369

By the Court. This cause was first decided by the court of appeals, when it had original jurisdiction, and the decree then pronounced was not subject to revision, farther than it had been opened for a rehearing on the supposed errors, which were certified conformable to a then existing rule of that court.

Therefore when by a subsequent, law, a srehearing was had in the district court, on the decree from which this appeal was taken, that court did not or ought not to have gone into a decision of the cause, farther than it was authorized by the errors thus assigned, and for the same reason, the court of appeals in now deciding on this appeal, is bound strictly to confine itself to those errors.

To do which it is necessary to premise that the claim of the complainants in the original suit, now the appellant’s, is founded on the following certificate from the commissioners, and entry with the surveyor: Bryan’s station, January 12,1780. “ David Bryan by James Bryan, this day claimed a pre-emption of 1,000 acres of land at the state price in Kentucky, lying on the branches of Elkhorn creek, about four and a half miles south-west of this place, by marking and improving the same in the year 1776.

Satisfactory proof being made to the court, they are of opinion that the said David Bryan has a right to a pre-emption of 1,000 acres of land, to include the above location, and that a certificate issue accordingly.” “ Fayette county, Surveyor’s office, May 30,1783. “ David Bryan and John C.

Owings enter 1,000 acres', of land on a pre-emption warrant, No. 830, on a branch of Elkhorn, and about four and a half miles south-westwardly of Bryan’s station.’’ From the reasons assigned for opening the decree under consideration, the court is not able to determine whether three distinct errors wore intended to be assigned, or two only. B,ut as it can injure neither of the parties, they may be taken as three.

The first error is: “ Because the commissioners have granted the complainants a certificate for an improvement, and the facts ascertain what the improvement was, how granted, and at what place.” This, if strictly taken, is certainly immaterial, it being nothing more than a simple proposition without an inference. But if the court were to supply the inference, which it is presumed was intended, that therefore the claim of the complainants ought to have been sustained. It can not be justified by the land law.

It is true that the facts found by the jury do ascertain the place where the letters‘;D B were cut on the elm tree, which was intended for an improvement for the appellant David, and for which the certificate for the pre-emption was obtained from the commissioners ; but the land law requiring what is not done in the present case, that in the certificate the particular location of the land should be described as near as may be, we think the question so important that it can not be disjjensod with.

The surveyor’s report ascertains that the only particular calls in the location, about four and a half miles a south-west course from Bryan’s station, do not lead to this improvement but to a place at the distance of more than two miles from it. And as to the improvement, admitting it to be called for in the location, the facts found by the jury ascertain that the marking intended for an improvement for the appellant David, was only the letters D B cut on the elm tree.

The facts found by the jury in this cause inform us that until long after- the appellee’s entry was made and surveyed (the legality of neither of which is denied in the errors assigned), only three persons had ever seen this improvement, and that a few others, in May, 1780, were informed of its situation, who all removed from the now State of Kentucky, about the month of August, 1780, and that none of them returned to it before 1784. That during this iong space of time the appellants’ agent could find no person who could show the improvement.

That David-Bryan was sent for, to the State of North Carolina, to show the marked tree. That before the year 1784 the letters D B were cut out of the elm tree, and some other marks substituted in their place; and that when the pre-emption right was ascertained by the commissioners, there were several other places on the waters of Elkhorn, in the neighborhood of this elm tree, where letters were mai-kcd on trees, or where trees wore girdled, or the beginning of cabins made some years before that time.

These matters of fact clearly evince that the location with the commissioners was so far from a compliance with the requisitions of the land law that, on the contrary, the calls therein for course and distance were calculated to deceive every subsequent locator, and that the improvement, admitting it to be called for, had no reasonable degree of notoriety, nor even any mark of distinction by which it could have been known to be claimed by the appellant, David Bryan, if it had accidentally been discovered.

But, to accord with a leading principle of the land law, the certificate ought not only to have shown that the claim had been sustained by the commissioners, but should likewise have contained such a description of the situation that subsequent locators, on reasonable inquiry, might have found it. The second error assigned can not justly be imputed to the former decree of this court.

It is as follows: Because confining the complainant to his course and distance, when he calls to include his location, is' an indirect mode of opening the decision of the court of commissioners, as they have considered and adjudged the improvement to be sufficient to entitle the complainant to his claim, this court only adjudged that the location contained in the certificate granted by the commissioners was essentially defective, which, it was then and is now conceived, must have been devised by the claimant, or his agent, and which the commissioners had neither skill to direct nor power to control.

Its validity, therefore, depends on the clause of the land law before alluded to, and not the decision of the commissioners, which this court has formerly adjudged it had no power to annul in favor of claims which originated subsequent to those decisions, and has never since entertained any design of contravening that adjudication. But surely the construing of a location properly, or improperly, is very different from opening the decisions of the commissioners.

The third error assigned is, because the entry with the surveyor, and with the commissioners, according to a former decree of the court, and to law, ought to be taken together. This is certainly founded on a mistake both of fact and of law. The late supreme court, in the suit Consilla v. Briscoe, adjudged that, because a settlement right could not be removed from its original location, and the certificate for which being recorded in thefeurveyor’s office where the entry thereon was made, they ought to bo taken together, or bo allowed to explain each other.

And another reason with gréat propriety might have been added, that the land law did not point out in what manner such an entry should be made ; and the court of appeals, in the last decree in the suit Kenton v. McConnell, etc., a similar case, has recognized that adj udication. Butrin the case of a pre-emption right granted for an improvement, it is believed that no such opinion has ever been given, and if there had, it could not have been supported by law or equity, the case being evidently different from that of settlement rights.

The certificate for pre-emptions founded on improvements were not required to be recorded with the surveyor, but entries on preemption warrants, as well as all other kinds of land warrants, were required to be directed so specially and precisely that others might be enabled with certainty to locate other warrants on the adjacent residuum, which must imply that the pre-emptioners would be bound by their entries; and the entry under consideration being made subsequent to the passage of the act, in 1782, permitting the pre-emption warrants to be located on any vacant lands, it would be highly absurd that the location with the commissioners and the entry with the surveyor should be taken together, when the claimant himself might have made and intended a discordance between them.

Therefore, in all such cases, it can only be projoer to recur to the location with the commissioners, and compare it with the entry with the surveyor, for the purposo of discovering the dignity of the claim. In every other point of view the entry must depend upon its own specialty and precision.

On a review of this case, so far as the errors which have been assigned extend, it is evident that if the expressions in the appellants’ location with the commissioners, “ to include the above location,” is synonymous with the expression to include the improvement, then the entry with the surveyor is materially variant-from the location with the Commissioners; and the entry with the surveyor being the last act of the appellants, o.f which they might have taken the advantage, reason as well as law pronounces that they ought to be bound by it:; and, being bound, had they made their survey conformable thereto, it would not have interfered with the claim of the appellee, or any part thereof.

Wherefore, it is decreed and ordered, that the former decree of this court, and of the said district court dismissing the appellants’ bill, be affirmed, and that they pay unto the appellee his costs about this appeal expended.