Wilson v. Mason. Mason v. Wilson. 1 C.

appropriated lands, shall lodge such warrant with the chief surveyor of the county wherein the said lands, or the greater part of them lie, who shall give a receipt for the same if required. The party shall direct the location thereof so specially and precisely as that others may be enabled with certainty to locate other warrants on the adjacent residuum; which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose, in which there shall be left no blank leaves or spaces between the different entries."

George Mason was one of the earliest purchasers under this law. On the 29th of April, 1780, he made the following entries: "1780, 29th April, George Mason enters 8,400 acres of land, to begin on Panther Creek on the east side thereof, [89] opposite to a beech on the west side, about four miles above

the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity."

"1780, April 29th, George Mason enters 8,300 acres, to begin at the upper corner of his 8,400 acre entry, and to run up the creek on the east side and back for quantity."

Panther Creek pursues a general westwardly course from its source till it empties into Green River.

The creek forks something more than twelve miles and one quarter of a mile in a straight line above its mouth; and one of those forks, the direction of which towards its source is northwardly, has, from the beginning of the year 1780, been generally termed the west fork, and the other has been termed Panther Creek.

On the 27th of October, 1780, Mr. Mason made the following entry with the same surveyor:

"1780, October the 27th, George Mason desires to make his entry of 8,400 acres, more special on Panther Creek, viz. to begin four miles above the forks of Panther Creek, where it mouths into Green River, on the east side, running up and back for quantity."

In the months of September and October, 1783, these two entries of 8,400 and 8,300 acres were surveyed by James Hord, one of the deputy surveyors of the county of Jefferson, which surveys, as was the custom, were made conformably to the instructions given by Mr. Mason's agent.

The survey of the entry of 8,400 acres is supposed to conform to the explanation or amendment of that entry made in October, 1780. It begins four miles above the mouth of Panther Creek, and something more than eight miles below its forks.

The survey of the 8,300 acre entry adjoins the survey of 8,400 acres on the upper side; and the plat was shown by the surveyor, be

Wilson v. Mason. Mason v. Wilson. 1 C.

[90] fore he would return it to the then agent of Mr. Mason, who, after its supposed variance from the entry was suggested to him, approved it, and directed it to be returned to the office. These surveys were returned in the course of the fall, 1783.

The supposed variance between the survey and location of the 8,300 acres was afterwards, about the 12th of September, 1784, pointed out by the surveyor to a subsequent agent of Mr. Mason, who also approved of the manner in which the surveys were made, and returned them to the land-office.

On the 9th of April, 1783, George Wilson enters with the surveyor of Jefferson county 40,926 acres of land on Panther Creek, so as entirely to include George Mason's survey of 8,300 acres.

This entry, though in the name of George Wilson, was made by John Handley, a deputy surveyor for Jefferson county, for his own benefit and that of Christopher Greenup, as well as for the benefit of George Wilson, and at the time of making the entry, full knowledge of the previous survey made of the same land for George Mason had been obtained by the said Handley, who had seen the surveys in the office, and had communicated this information to his two partners in the entry.

In the month of March, 1784, George Wilson entered, in the supreme court of the district of Kentucky, a caveat to prevent a grant from issuing on George Mason's survey of 8,300 acres, because the survey was made contrary to location, and because the entry was vague, he claiming the same, or so much thereof as interferes with his entry made on treasury warrants for 40,926 acres on the 9th of April, 1784.

Pending the caveat George Mason departed this life, and the suit was revived against Richard Mason, devisee of the said George, at whose petition it was removed into the court of the United States, held for the district of Kentucky.

*

[ *91 ] A cross caveat was entered in the same court on the part of Richard Mason, to prevent the issuing a patent to George Wilson, and these causes coming on to be heard, it was agreed that the judgment rendered in the caveat Wilson v. Mason, should be also entered in the case of Mason v. Wilson.

In June term, 1800, the opinion of the court for the district of Kentucky was given, that the defendant Mason had the better right, and it was ordered that the caveat entered by Wilson should be dismissed.

To this judgment the plaintiff Wilson has obtained a writ of error, and the principal question now to be decided by this court is, which of the parties has the better right.

But before entering on the question, it may be necessary to notice

Wilson v. Mason. Mason v. Wilson. 1 C.

a preliminary point made by the counsel for the defendant in error. He contends that in a caveat the decision of the district court is final, and that the cause cannot be carried before a superior tribunal.

To maintain this proposition he relies on an act of the legislature of Virginia, making the judgments of the district courts of the State final in cases of caveat; and on the compact between Virginia and Kentucky, which stipulates that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws.

This argument would not appear to be well founded had Virginia and Kentucky even been for every purpose independent nations; because the compact must be considered as providing for the preservation of titles, not of the tribunals which should decide on those titles. But when their situation in regard to the United States is contemplated, the court cannot perceive how a doubt could have existed respecting this point. The constitution of the United States, to which the parties to this compact had assented, gave jurisdiction to the federal courts in controversies between citizens of different States. The same constitution vested in this court an appellate jurisdiction in all cases where original jurisdiction was given to the inferior courts, with only "such exceptions, and [ *92 ] under such regulations, as the congress shall make.” Congress, in pursuance to the constitution, has passed a law on the subject, in which the appellate jurisdiction of this court is described in general terms so as to comprehend this case, nor is there in that law any exception or regulation which would exclude the case of a caveat from its general provisions. If then, the compact between Virginia and Kentucky was even susceptible of the construction contended for, that construction could only be maintained on the principle that the legislatures of any two States might, by agreement between themselves, annul the constitution of the United States.

The jurisdiction of the court being perfectly clear, it remains to inquire which of the parties has the better right.

The title of Mason being eldest, is of course the best, if it be not in itself defective.

In the caveat of the plaintiff in error two defects in the title of the defendant are assigned.

1st. That his entry is vague.

2d. That he has surveyed contrary to his location.

The first was abandoned in argument, and does not appear to the court to have been maintainable.

The second shall now be considered.

To support the allegation that the survey has been made contrary to the location, the entry and the survey are produced.

VOL. I.

30

Wilson v. Mason. Mason v. Wilson. 1 C.

had to the entry called for.

The entry calls for a beginning on the upper corner of George Mason's entry of 8,400 acres. To ascertain this spot reference must be That is to begin on Panther Creek, on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek and eastwardly for quantity.

[ *93 ]

* The branch of Panther Creek, which was at the date of the entry generally denominated the west fork, is something more than twelve miles and one quarter of a mile above its mouth. The entry of 8,400 acres is to begin four miles above the west fork, and the land in controversy ought to be placed above that entry. Yet it is surveyed below the west fork.

To obviate this difficulty, the counsel for the defendant in error produces and relies upon the entry of October 27th, 1780.

That entry is in these words:

"George Mason desires to make his entry of 8,400 acres more special on Panther Creek, viz., to begin four miles above the forks of Panther Creek, where it mouths into Green River, on the east side, running up and back for quantity."

This entry is contended to be not a removal, but an explanation of that which had been made on the 29th of April, 1780, and being merely an explanation, the survey of the land in controversy, beginning at the upper corner of the survey of the 8,400 acre tract, conforms to its original location, and is, consequently, free from the exception made to it.

If this position be true, the entry of the 27th of October, 1780, must describe the same land with that which is described, though with less certainty, by the entry of the 29th of April, in the same year.

But the entry of the 29th of April calls for a beginning four miles above the mouth of the west fork of Panther Creek, which fork is more than twelve miles in a straight line above the mouth of the creek, and the subsequent entry begins four miles above the forks of Panther Creek, where it mouths into Green River. The west fork of Panther Creek, and the mouth of the same creek, where it empties into the river, are perfectly distinct and separate places, and were so understood at the time this location was made.

[ *94 ]

* It is, however, contended, that in the extensive wilderness offered for sale, accuracy of description was not to be expected, and the point of union between a creek and river might well be mistaken for the forks of a creek.

This would not be very probable in any case, but is totally inadmissible in this, because names of places which they were generally understood to possess have been used by the person locating for Mr.

Wilson v. Mason. Mason v. Wilson. 1 C.

Mason, and as there are no other controlling boundaries referred to, they must be understood as designating the watercourses which were commonly described by those names, and which any person inclined to locate the adjacent residuum would necessarily suppose to have been referred to by them.

But if the location of October explains without removing that of April, then the original entry might, without such explanation, have been there surveyed, and could not have been properly surveyed four miles above the west fork.

This would scarcely have been attempted.

Indeed the counsellor for the appellee, in admitting that an entry made on the land in controversy, subsequent to Mason's entry, but before his survey, would have been good, seems to have disclosed an opinion that the original entry did not comprehend the land in question, and that not the entry, but the survey, is to be relied on as the foundation of his title.

To the court it appears perfectly clear, that the entry of the 27th of October was a removal, and not an explanation, of that of the 29th of April.

It has not been contended that the removal of the 8,400 acre entry has also removed that of 8,300 acres.

The title of Mason, then, if good, must be shown to be so by establishing that a survey, without an entry, is a sufficient foundation for a title.

With a view to discover whether this question has been settled in Kentucky, all the adjudications contained in the *book of reports furnished by the counsel for the plaintiff [*95 ] in error have been examined. It is not perceived either that the question has been directly determined, or that any principles have been settled which govern it.

This case, then, is of the first impression.

The act of the Virginia legislature must be expounded according to the opinion this court may entertain of its import, without deriving any aid from the decisions of the State tribunals.

In 1779, Virginia opened a land-office for the sale of an extensive, unsettled, and almost unexplored country, the motives for which are stated in the preamble of the statute to have been "to encourage the migration of foreigners, promote population, increase the annual revenue, and create a fund for discharging the public debt."

Any person whatever might become a purchaser of any portion of these lands by paying into the treasury of the commonwealth the purchase-money required by law. By doing so he became entitled to a warrant authorizing any surveyor to lay off for him, in one or