V.

TAYLOR.

John Walden's land, not to the location of Taylor's. BODLEY 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 Drennon and Simon Butler.

4

pur

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 be 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 pose. 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 is 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 is 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 in 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 north 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 Walden's line as to contain the exact quantity.

This being the manner in which 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 part 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 those persons. If, by any inadvertence, the Waldens and Tavlor 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 survey of lands, not within the location, to withdrawing of 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 increase that gain.

Was this, then, a case of the first impression, the court would strongly incline to the opinion

BODLEY

V.

TAYLOR.

that Bodley and Hughes ought not to receive a
conveyance for the lands within Taylor's survey,
and not within his entry, but on the condition of
their consenting to convey to him the lands they
hold which were within his entry and are not in-
Icluded 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 dif-
ferent from that which this court would deem cor-
rect. 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 be 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.

TAYLOR AND QUARLES v. BROWN.

The first sur

vey, under a

ERROR to the district court for the Kentucky military and district, in a suit in chancery, wherein Taylor and warrant in Quarles were complainants against Brown. The Virginia, gives bill of the complainants was dismissed by the the prior equity. The sur court below.

vey is the act

of appropria

tion.

Both parties claimed under military warrants The certifi- upon the king's proclamation, for services rendered is sufficient evi- prior to the year 1763.

cate of survey

dence that the

warrant was in

the hands of The complainants claimed under a warrant in the surveyor. favour of Angus M'Donald, for 2,000 acres issued

TAYLOR

V.

BROWN.

of the land

the 5th of February, 1774. The defendant claimed under a warrant in favour of Jethro Sumner, for 2,000 acres, issued the 3d of December, 1773. M'Donald's survey was made on the 7th of July, That clause 1774. Sumner's was made on the 24th of June, law of Virgi1775, and he obtained a patent on the 5th of Janua- nia, which reThe patent upon ry, 1780. quires M'Donald's every survey, survey to be was not issued until the 10th of January, 1792; recorded withso that the complainants had a younger warrant in two months and patent, but the elder survey. The defendant is merely di

after it is made,

surveyor; and

had the elder warrant and patent, but the younger rectory to the survey. M'Donald's survey included 3,025 acres; his neglect to Sumner's included, 2,576 acres. The quantity co- record it does vered by both surveys was 1,080 acres, of which not invalidate the survey. Taylor claimed 660, and Quarles, 200; it did not It is not neappear who claimed the other 220 acres, included cessary in the interference.

that the deputy surveyor who made the survey, should

M'Donald's survey was made by Hancock Tay- make out the lor, an assistant surveyor of Fincastle county, where plat and certify it. It may the lands lay, who, before his return to the office, be done from was killed by the Indians on the last of July, 1774, his notes, by

surveyor.

but his field-books and papers were preserved by the principal his attendants, and delivered to the principal sur- A subseveyor of the county, in September, 1774, who made out a plat therefrom.

quent locator

of land in Virginia, without notice of the prior location,

taining the el

The complainants' bill charges, that the survey of cannot protect Sumner was fraudulently made, so as to interfere himself by obwith M'Donald's. The answer denies the fraud; der patent. and there was no evidence of fraud, or even of no- A survey is not tice on the part of Sumner.

P. B. Key and Rowan, for the complainants, (the plaintiffs in error,) contended, that the survey made by Hancock Taylor, and the plat and certificate of sur vey made out by the principal surveyor, were a good execution of the warrant, and were a complete appropriation of the land surveyed, so as to give to ́M'Donald a prior title in equity; and that the subsequent patent related back to the survey, so as to give to the complainants a better title in equity than the defendants.

void because it includes more land than was directed to be surveyed by the warrant. relates to the inception of title; and thereof equity, the person who

The patent

fore, in a court

has first appropriated the and has the

best title, un