BODLEY AND OTHERS v. TAYLOR, 5 Cranch 191

inarch 14th, 1809. Marshall, Ch. J. delivered the opinion of the court as follows: This js an appeal from a decree of the court for the district of Kentucky, by which Taylor was directed to convey, to Bodley and others a part of a tract of land to which he held an elder patent,. but to-which Bodley and others claim the better right under a junior patent.

The judge of the district court having directed such part of the land held by Taylor to be conveyed to Bodley and others, as appeared by certain rules, which he has applied to the case, to be within their claim, and not within Taylor’s location, and having dismissed their bill as to, the residue, each party has appealed from his decree. Previous to any discussion of the rights of the parties, it has become necessary to dispose of a preliminary question.

The defendant in the court below objects to the jurisdiction of a court of equity, and contends not only that the present case furnishes no ground of jurisdiction, upon general principles, but that the land law under which both titles originate, jn giving a remedy by which rights under entries might bfe decided previous to the emanation of a patent, has prohibited an examination of the same question -after a patent shall have issued. Had this been a case of the first impression, some contrariety of opinion would perhaps have existed on this point.

But.it has been sufficiently shown that the practice of resorting to a court of chancery in order to set up an equitable against the legal title, received, in its origin, the sanction of the court of appeals; while Kentucky remáined a part of Virginia, and has been so confirmed by an uninterrupted series of decisions as tó be incorporated into their system, and to be taken into view, in the consideration of every tide to lands in that country. - Such a principle cannot now be shaken.

But it is an inquiry of vast importance whether, in deciding claims of this description, a court of equity acts upon its known, established and general principles; or is. merely substituted for á court of law, with power to decide questions respecting rights under the statute, as they existed previous to the consummation of those rights by patent.

It has been argued that the right acquired by an entry is a legal right; because-it is given by a statute; that it is the statutory inception of a legal title which gives to the person making it a right, against • every person not having a prior entry, to obtain a patent and to hold the 'land.

The inference drawn from this is, that as the law affords no remedy against a person--Who has defeated this right by improperly obtaining á prior patent, a.court of chancery, which can afford it, ought to consider itself as sitting in the character of 'a court of law, and ought to decide those questions ás á court of law,would decide them, if capable of looking beyond the patent. . This reasoning would perhaps be conclusive if a, court of chanpery was, by statute, substituted in the place of a court of law* with an express grant of jurisdiction in the case. .

But the jurisdiction exercised by a court of chancery is- not granted by statute; it is assumed by itself: and what can justify that assumption but the opinion that cases of this description come within. the sphere of its general aciion ? In all cases in which a court of equity takes jurisdiction, it will exercise that jurisdiction upon its own prihciples* It is believed that no exceptions this rule is to be found in .the books, and the state of .land titles jn . Kentucky is not believed to furnish one.

The. true ground of the jurisdietlon of a court of equity is, that an entry is considered as a record of which a subsequent locator may have notice, and therefore must be presumed to have it $ consequently, although he may obtain the first patent, he is liable, in equity, to the rules which apply to a subsequent purchaser with notice of a prior equitable right. This certainly brings the validity of the entries before the court, but it also brings with that question every other which defeats the equity of the plaintiff.

The court, therefore, will entertain jurisdiction of the cause, but will exercise that jurisdiction in conformity with the settled principles of a court of chancery. It will afford a remedy which a court of law cannot afford, but since that remedy is not given by statute, it will be applied by this. court as tile principles of equity require its application. Neither is the compact between Virginia and Kentucky considered as affecting this case.

If the same measure of justice be meted to the citizens of each state, if laws be neither made nor expounded for the purpose of depriving those who áre protected by that compact, of their rights, no violation of that,compact is perceived. The court will proceed, then, to inquire into the rights'of the parties,'and, in. making this inquiry, will pay great respect.to all those principles which appear to be well established in the state in which the lands in controversy lie. Taylor holding the eldest patent, it is necessary that the complainants below should found their title on a good entry.

The validity of their entry, there-, fore, is the first subject of examination. It was made on the 17th of October, 1783, and is in these words; “ Henry Crutcher and John Tibbs enter 10,000 acres- of land on a treasury warrant, beginning at a large black ash and small buckeye marked thus, I. T. on the side of a buffaloTpaci leading ffom the lower blue licks a N< .£. bourse, and about seven miles N. E. by E.f’rqm the said blue licks,” See. The only objection to this entry is, that thé beginning is uncertain. Were the validity of this objection to be admitted, it Would shake almost every title in Kentucky.

If it be recollected that almost every acre of good land in that state was located at á time when only a few individuals, collected in scattered forts or villages, encroached on the fights of the savages and wild beasts of the country, that neither these sparse settlers, nor those hardy adventurers who travelled thither in quest of, lands, could venture out to explore the country, without-exposing their lives to imminent hazard, that many of those who had thus explored the country, aud who made locations, Were unlettered men, not only incapable of expounding the laws, but some of them incapable of reading, it Is not wonderful that the courts of Kentucky should have relaxed, in some degree, the rigour of the rule requiring an impracticable precision in making entries, should have laid hold of every circumstance which might afford that certainty which the íaw has required, ánd should be content with that reasonable certainty which would enable a subsequent locator, by the exercise of a. due degree of. judgment and diligence, to locate his own lands on the adjacent residuum.

The entry of Crutcher and Tibb3 possesses this reasonable certainty. Tjie blue licks was a^place of general notoriety, and there appears to1 have been no difficulty in ascertaining the point from, which the mensuration should . commence. There being only one of the three roads leading from that point, which ran nearly a N. E. course, no subsequent locator could doubt on which road this land Was placed. .

The entry having called for visible objects on the road about seven miles from the licks, those visible objects might be discovered without any extraordinary ex-ertioh; and if they could not be discovered, then that call, according -to the course of decisions in Kentucky, would be discarded, and about seven miles would be considered as seven miles. But those objects remained, and -it appears that no difficulty has arisen, or ought to arise, on this, point. The jury have found it to be the beginning called for in' the entry.

The entry,, therefore, of Crutcher and Tibbs is sufficiently certain, and the court will proceed to examine the entry and survey of Taylor. This entry being'the last link of a chain commencing with Jacob Johnson, it is necessary to fix Jacob Johnson, in order to ascertain the position of Taylor. Jacob Johnson’s title is a settlement and pre-emption; a certificate for which was granted by the commissioners, on the 7th day of January, 17.80, id the following terms.

Peter Johnson,‘heir at law of Jacob Johnson, deceased, this day claimed a settlement and pre-emption to a tract of land in the district of Kentucky, lying on the .gast side of the buffalo-road leading from the blue licks to Limestone,, nine miles from the lick on the upper road, by the said decedent’s raising a crop of corn in the year 1776. Satisfactory proof being made to the court, they. are of opinion that the said Peter Johnson, &c. has a right to a settlement of 400 acres of land to include the above location, and the pre-emption of 1,000 acres adjoining, and that a certificate issue, accordingly.

On the 21st of February,. 1780, this certificate, so far as respected the settlement of 400 acres, was entered with the surveyor- it -is the opinion of the court that the 400 acres of land should lie entirely on the east side of the road, that it should begin at the distance of nine miles, and. that those miles should be computed not by a straight line, but according to the meanders of the road, In this respect the court perceives a clear distinction between a call for one place by its distance from, another, if the intermediate space be entirely woods* or if a stream, which cannot well be followed, passes from the one to the other, and where á road is called for, which conducts individuals from point to point, The distance of places from each other is not generally computed by a stream uot navigable, but is always computed by a road which is.travelled.

It is, therefore, the opinion of the court that where, as in this case, there is no other call in the entry showing a contrary intent, and the entry is placed ón a road at a certain distance from a given point by which the road passes,, the distance is to be computed by the meanders of the road, and not by a straight line. The beginning of Johnson’s settlement being found, and its western side being placed along the road, the next inquiry is, in what manner the land is to be surveyed.

In order to give certainty to locations of this der scription, the courts. of Kentucky have uniformly determined that they shall be understood as being made in a square. Johnson’s line upon the road, therefore, must extend, along the road until two lines at right angles from each end. <jf this base shall, with a third line parallel to the general course, of the road, include, in a figure which, if the rpad be reduced to a straight line, would make a square, the quantity of 400 acres on the east side of the road.

The next link in this chain of entries,, oh which the title of Taylor depends, is Ambrose Walden’s. . 'Off the 22d of May, 1780, Ambrose Walden cntéred 1,333 acres on the east side of Jacob John-Son’s settlement and pre-emption, on the waters of Johnson’s fork, a branch of licking, to include two cabins on the n'qrth side of said fork, built by. Simon Butler, and to run eastwardly for quantity. The cabins, it is said, cannot be fopnd; or, if found, cannot be distinguished. .

The waters of Johnson’s fork would, be too vague, and, therefore, the validity of this entry must depend on the call for Johnson’s settlement and pre-emption* This is said to be insufficient, bécaúse the preemption had not, at that time, been' located with the surveyor, and the certificate of the commissioners was no location. Johnson’s pre-emption, therefore, had, on the ?2d of May, 1780, ho locality, a subsequent entry could pot depend updn it; for it might be placed in any ■ situation, or in any form, provided it be so placed as to adjoin his settlement in any point.

The argument with respect to the pre-emption appears to. the court to be conclusive. ’This pre-emp* tiori right certainly had no locality on the 22d of May, 1780, and an entry made to depend entirely on it would have been too vague, too Uncertain, to be maintained. But it does not follow that the entry of Ambrose Walden is void. He does not call singly for the pre-emption, he calls for “ the east side of Johnson’s settlement and pre-emption right;” and it seems to the court that a fair application of j the principles which have governed in Kentucky in similar cases, will maintain this location.

The settlement was actually located; the.p^emption, at the time, had no other than a potential existence; and the uniform course of decisions appears to have been to discard one call which is either impossible or uncertain, .and-to support the entry, if there be other calls which 'are sufficiently certain. The decisions have gone so far as to dismiss a part of the description of a single call, if other terms of description be sufficient to ascertain the_ thing called for.

Now the call for the settlement right is valid and certain; and the court is not of opinion that this certainty is reni$$red uncertain by being united to the call for a pre-emption which had no real existence. The call appears to be substantially the same as if it had been for the land of Johnson. His settlement and pre-emption Was perhaps the name which,, in common parlance, designated this land even before the location of the pre-emption, because it was appendant to the settlement.. It has been decided that a call for the land would be good, and the court thinks that decision applicable to this case..

Against this has been urged the doubt which 3 subsequent locator would have entertained at the time, whether Johnson might not have, been permitted to locate his pre-emption on any land adjoining his settlement, and whether Walden’s entry calling for that pre-emption might be decided to be. good, and to be placed so as to bind upon it.. This doubt, it is said, though now removed, then existed, and Would have operated on the mind of the subsequent locator.

The force of this argument will not be denied; But it must álso be admitted that it applies with equal strength to the course of artificial reasoning which has governed the decisions of the courts of Kentucky, and on which the titles of the people, of that country depend. Subsequent locators must have doubted in what manner any of these questions would be decided. But having been decided, the-certainty which they have introduced is carriedback to the time when the location was made, and affirms that location.

It has also been said that it is uncertain which side of Johnson’s settlement is the east side, and that, in point of fact, the upper side, or that furthest from' the blue licks, faces the east more nearly than any other. However this- fact may be, the court is of opinion that the terms of Johnson’s entry designate his east side. His settlement is to. lie on the east side of the road. The road, then, in contemplation of the locator, forms,the west side, and the side opposite the road must be the. east side.

The entry must have been so understood by all subsequent locators; and when they call for his east side, the intention to place themselves on the side opposite the road, is sufficiently intelligible. In this, as in other difficulties which occur in the course of the inquiry, it is material to observe that the bill does not charge Taylor’s entry to be void for uncertainty. On the contrary it impliedly admits the certainty of. his location-, and charges that his survey does not conform to it. The real question, then, is not whether Taylor shall be surveyed at all, but where he shall be placed.

The entry of Ambrose Walden, then, will lie on the east side of Johnson’s settlement, that is, on the side opposite the road; and, this point being established,. the manner in which his land is to be surveyed is free from further doubt. It is to be laid off in a square, the centre of the base line of which is to be tne centre of the south-eastern line of Johnson’s settlement. The next entry to be considered is that of John Walden. He enters 1,666 2-3 acres,joining Ambrose Walden,- on the south and south-east, and to run east and south-east for quantity.

Although Ambrose Walden has no south side, yet it is sufficiently apparent that his south-west side was intended by the locator. The difficulty arises from the subsequent call of the entry to run east and south-east for ,quantity. A line drawn ■ east from Ambrose Walden’s south-western corner would pass through the. middle of his land, and a line drawn south-east from the same corner would pass either through or so near his land as to make it almost impossible to suppose that the locator could have intended' to make so long and narrow a triangle.

The reasonable partiality of Kentucky for rectangular figures must, therefore, decide the shape of John Walden’s land, and regulate the manner in which this call of his entry is to be understood. Ambrose Walden’s north-western line must be extended to the south, and a line must be drawn due east from his eastern corner, so that a-line parallel to his southeastern line intersecting a line drawn south-east from the extremity of the north-western line of Ambrose Walden continued shall lay off 1,666 2-3 acres of land in equal quantities on the northern and south-eastern sides of Ambrose.

It is not to bte disguised that there is much difficulty in' placing John Walden, but the court can j erceive no mode of placing him more conformable to the principles which prevail in Kentucky than' that which it has adopted. We are now brought to Taylor’s entry. On the 22d of May, 1780, John Taylor enters 3,000 acres adjoining John Walden <?n the north side of Johnson’s fork of licking, on the east and south-east side, running up and down said creek, and north for quantity, to include an improvement made by Jacob Drennon and Simon Butler.

There is to John Walden’s land no east side, nor any side so nearly east as the south-east side. The word side, being in the singular number, and the same side answering, better than any other,' both parts of the description, the land must lie on the south-east side. It is .also thought to be the more reasonable construction of the entry that the words, on the north side of Johnson’s fork, refer to the situation of John Walden’s land, not to the location of Tailor’s. But this is probably not important in the case.

Taylor is to lie on the south-east of Walden, to include ■ an improvement made by Drennon and Butler, to run up and down the creek, and north for quantity. With these calls, it would have been the opinion of the court that Taylor could not cross the creek, had not his entry called for an object on the south side of the creek. That object is . the improvement made by Jacob Drennotrand Simon Butler. It has been said. that the country was covered with cabins, and that therefore this call was no designation of the. land that was located.

This argument is correct so far as it is urged to prove that this would not he sufficient, as a general description, to enable subsequent locators to say in what part of the country this entry was made. Neither would the letters I. T. marked on a tree answer this purpose. But, when brought into the neighbourhood, by other parts- of the description, these letters serve to ascertain the beginning of the entry under which the claim adversary to that of Taylor is supported.

So Taylor informs subsequent locators of the neighbourhood' in which his land lies, by calling for the south-east side of John Walden’s entry, on the north of Johnson’s fork, which is found by a reference to other entries which commence at a point of public notoriety. When brought to the south-east side of John Walden, he is near the cabin called for, and it does not appear that there was, in the neighbourhood, any other cabin which this entry could possibly be understood to include.

This.part of the description, then, will carry Taylor to the south side of Johnson’s fork, and, if permitted to cross that fork, the favourite figure of the square must be resorted to. Against this it is said that, in such a case, the rule of Kentucky will carry, him no further than barely to include the object of his call.

But this rule cannot apply to this case, because it would give a survey the breadth of which would not be one third of its length. it js impossible to look at the . general plat returned in this case without feeling a conviction that the surveyor considered that fork which, in the' plat, is termed mud. lick fork,, as Johnson’s fork; and there js no testimony in the cause which shows that, when this location was made, that middle stream which runs through Taylor’s survey was denominated Johnson’s fork.

The finding of the jury, however, that the roads and water-courses are rightly laid down, must induce the opinion that this fact was proved to them. in a case where the mistake is so obvious, the rule which, under circumstances so doubtful, relative to place, deprives the person, in surveying’ whose property the mistake has been made, of his legal title, appears to be a severe rule to be adopted in a court of equity. But such is the situation of land titles hi Kentucky, that the rule must be inflexible.

Taylor, then, must adjoin John Walden on his south-east side, where that line crosses Johnson’s fork, if it does cross it, and if it does not, then at its south-eastern extremity, which will be nearest Johnson’s fork. If a square formed upon the whole line shall contain less than three thousand acres, then two lines are to be extended due nprth . until, with a line running east and west, the quantity of three thousand acres shall be contained in the whole figure. If such a square shall contain more than three thousand acres, then it is to be laid off on so much of Waldeni’s line as to contain the exact-quantity.

This being the manner in wtiich it appears to the court that Taylor’s entry ought to be surveyed, it remains to. inquire whether, under the principles which govern a court of equity in affording its aid to an equitable against a legal title, the complainants below ought to recover, any, and, if any, what pari; of the lands surveyed by Taylor, and, if any, what terms are to be imposed upon them. The entry as well as patent of Taylor is prior to that under which the complainants in the district' court assert their title.

Of the entries made within their location, therefore, they had that implied notice which gives a court of equity jurisdiction of this cause. They cannot object to the operation of a principle which enables them to come into court. But, in addition to this principle, they must be considered as having notice, in fact, of these locations'. The position of the entries of both plaintiffs and defendant is ascertained by calling for certain distances along the same road from the same object.

Crutcher and Tibbs, therefore, when they made their location, knew well that they included the Waldens and Taylor, and that their entry could give them no pretensions to the lands previously entered by thos¡e persons..

If, by any inadvertence, the Waldens and Taylor have surveyed land to which Crutcher and Tibbs were entitled, and have left to Crutcher and Tibbs land to which the Waldens and Taylor were entitled, it would seem to the court to furnish no equity to Crutcher and .Tibbs against the legal title which is held by their adversaries, unless they will submit to the condition. of restoring the lands .they have gained by the inadvertence of which they complain. The court does not liken this inadvertent survqy of lands, not within the location, to withdrawing pf the warrant and re-entering it in another place.

The latter is the act of the mind intentionally abandoning an entry once made: the former is no act of the mind, and so far from evidencing an intention to abandon, discovers an intention to adhere to the appropriation once made. Although their legal effect may be the same, yet they are not the same with a person who has gained -by the inadvertence, and applies to a court of equity to incréase that gain.

Was this, then, a case of the first impression, the court would strongly incline to the opinion that Botlley and Hughes ought, not. to, receive a conveyance for the lands within Taylor’s survey*, and not within his entry, but oh the condition of their consenting, to convey .to him-the lands they hold which were within his entry and are not . included in his survey. But this, is not a case of the first impression. The court is compelled to believe that the principle is really settled in. a manner' different from that which this court \vould deem ,correct.

It is .impossible to say how many titles might be shaken by shaking the principle. The very extraordinary state of land title in that ■ country, has compelled its judges, in a series of decisions, to rear up. an artificial pile from which no piece can be taken, by hands, not intimately acquainted with the building,’without endangering the structure, and producing a mischief to, those holding under, it, the extent of which.may not be. perceived. The rule as. adopted must be pursued.

Taylor, then, must b.e surveyed, according to the principles' ‘laid down in this decree,, and must convey to the plaintiffs below the lands lying within his patent and theirs, which were not- within his entry.