Opinion
10-29-1802
Currie v. Martin
Call, for the appellant. Warden, contra. Doddridge, on the same side. Wickham, in reply. Williams, Call, Randolph and Wickham, for the appellants; and Warden and Doddridge, for the appellees.
May 11, 1801 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Martin, on the 28th May, 1798, filed a caveat against a patent to Currie, as assignee of Henry Banks, on a survey of 2,225 acres of land in Harrison county, dated 30th November, 1797; part of a warrant for 58,400 acres entered the 11th of May, 1784: 1. Because the entry does not express the date and number of the warrant. 2. Because the warrant did not exist at the time of the entry. 3. Because the entry was not special enough. 4. Because the land surveyed is not included in the entry. 5. Because Banks had made a survey, on the 27th of June, 1785, on the same entry, and had obtained a patent thereon, and, at different times, had made other surveys, and obtained other patents on the same entry, before the making of the survey caveated against. 6. Because the said survey is entirely unconnected with the beginning of the said entry, and with the said other surveys made upon the same entry, being separated by many prior claims, by settlement, & c. The caveator states his own claim to be founded upon an entry for 50 acres, made the 7th of February, 1797, by virtue of part of two warrants, viz. 25 acres, part of a Land Office treasury-warrant of 2,000 acres, issued to Col. William M'Williams, 8th May, 1783, and 25 acres, part of a preemption warrant of 1,000 acres issued to John Goodwin, jr. 28th March, 1782.
Upon the trial of the cause, in the District Court, the parties agreed a case, which stated: That on the 7th of August, 1783, a treasury-warrant issued to Henry Banks for 58,400 acres, which is set forth in haec verba. That on the 11th of May, 1784, an entry was made with the surveyor of Monongalia county, in the words and figures following: " Capt. George Jackson, for Henry Banks, enters a Land Office treasury-warrant of 58,400 acres, beginning at the mouth of the west fork where it empties into the Tyger Valley river, and extending up the fork to Simpson's creek." That the land lying about the confluence of the rivers mentioned in that entry had been appropriated by settlements between the said rivers, and have been patented upon such settlements. That in the year 1785, Henry Banks caused several surveys to be executed upon that entry for upwards of 13,000 acres, leaving the residue unsurveyed, beginning between the rivers mentioned in the said entry above the lands granted to settlers, without including the same, or commencing at the beginning of the said entry, and extending up the west fork, towards and nearly to the mouth of Simpson's creek, and in the forks of the said rivers, and obtained patents for the same. That these surveys were made after the division of Monongalia county; which took place in consequence of the act of 1784, and thereby the lands in controversy fell into Harrison county. That after the said division, the surveyor of Monongalia transmitted a copy of the said entry to the surveyor of Harrison county, who received the same, and, through mistake, entered it on his books as of the 7th of May, 1784. That on the 7th of February, 1797, Daniel Martin made an entry with the surveyor of Harrison county, in the following words: " Daniel Martin enters 50 acres, part of two warrants, viz. 25 acres, part of a Land Office treasury-warrant of 2,000 acres, No. 15,721, issued to Col. William M'Williams, the 8th of May, 1783, and 25 acres, part of a pre-emption warrant of 1,000 acres, No. 2,412, issued to John Goodwyn, jr. the 28th March, 1782, on waters of Booth creek, beginning adjoining the land of John Martin, and with his lines to join lands of Thomas Clare, thence to join lands of William Tucker and George Wiseman; which warrants were filed with the surveyor at the time of making the entry. That, in the year 1797, Henry Banks caused a number of other surveys to be executed upon the said entry, and assigned the same to the said James Currie; among which, the survey caveated was one. That the quantity of 58,400 acres cannot be obtained in the forks of the rivers before mentioned, by including all the lands as far up as the mouth of Simpson's creek, and extending the same distance up the Tyger Valley river, that quantity being sufficient to take almost all the land between the said river and Simpson's creek, almost as far up as the sources of the said creek. That the warrant, on which the 58,400 acres were entered for, was lodged with the surveyor of Monongalia, at the time of making the entry. That the caveator's survey, or a part of it, is contained within the bounds of the survey caveated against. That the caveator made a survey, on his entry, upon the 8th of August, 1798.
Upon this case the District Court gave judgment in favor of Martin; and Currie appealed to this Court.
Judgment reversed, and caveat dismissed with costs.
Call, for the appellant.
The entry is sufficiently certain; because it has a certain beginning, which is all that can be done in new countries, where there is nothing by which to describe fixed and ascertained limits with precision. The land entered for, is described to be within certain natural boundaries. For, the two rivers are to be pursued until the Monongalia comes to Simpson's creek, and then along Simpson's creek, until, if extended, it would strike the Tyger Valley river; because the lines were plainly to close some how or other; and that Simpson's creek should form the connecting line, was the most natural and fair interpretation of the terms of the entry. It would be no objection to say, that this might possibly contain more land than the entry called for; because, every entry is liable to the same objection; but, no entry was ever avoided upon that ground. The great reason for requiring certainty in the entry is, that other persons may be enabled to locate without difficulty. But, in the present case, any other person might easily have located by this entry. For, he would have had a certain beginning and natural boundaries, about which there could be no mistake: In which respects the entry is much more certain than that of Field v. Culbreath, 2 Call, 547, the other day, where there was no beginning, and the survey did not even include several of the lines expressed in the entry; yet it was held sufficient. This is in the true spirit of the law, which does not require a mathematical certainty, but a general description and a reasonable degree of certainty. Hunter et al. v. Hall, 1 Call, 206, in this Court. For, the law does not suppose that the exact boundaries can be given by the locator, but plainly intends that they shall be ascertained by the surveyor. In other words, the law intends some things to be done by the locator, and others by the surveyor; that is to say, the locator is to name the place, and the surveyor is to take care of the boundaries. Therefore, it is made the duty of the surveyor, and not of the locator, to see to the length and breadth of the plat, which plainly shews that the Legislature intended that the surveyor should ascertain the metes and boundaries, and not the locator, who is only to describe the situation as well as he can.
Hence, in practice, no survey, perhaps, has ever been found to agree precisely with the entry, as was proved in a remarkable degree in the case of Field v. Culbreath. The Land Office has been examined, and few entries are found to contain more certainty than the present. So, that as well upon principle as upon a fair interpretation of the law and the practice of the country, the entry must be deemed sufficiently certain.
The next enquiry then, will be, whether, as it appears that there were prior patents for some of the lands included within the entry, that circumstance will render the entry void? And it is extremely clear that it will not. For, it does not injure the rights of the prior settlers at all, because their prior patents would always be a sufficient defence, and a subsequent patent would avail nothing against them. Consequently, there can be no reason for obliging the locator to go through the immense labor and difficulty of laying a large warrant on the separate parcels, when a general entry might serve every purpose as well. Besides, in point of fact, it often has happened, and must hereafter, of necessity, frequently happen, that an entry does include some of the lands belonging to some other person; yet no entry was ever avoided for that reason. On the contrary, the case of Wolcott et al. v. Swan, 2 Call, 298, in this Court, may be considered as an express authority in favor of the entry. Because, in that case there were a great number of prior patentees within the bounds of the entry, and the decree directed those parcels to be expunged, and the entry stood for the balance, which is decisive of the principle.
A third question, which indeed grows out of that just discussed, is, whether the first survey did not satisfy the entry, so as to put it out of the power of Banks to make a second survey, upon the same entry? Or, in other words, whether he could survey one parcel, then another, and so on toties quoties, until his warrant was exhausted and his whole quantity completed? That such separate surveys may be made, seems necessarily to follow from the principles laid down in considering the last question. For, wherever there are inclusive prior settlements, there must be separate surveys, or you can never tell when the locator has got his quantity: So that the public might either grant more than enough, or the patentee receive less than he was entitled to. The moment, therefore, it is admitted that the entry may include prior grants, it follows, as a necessary consequence, that there may be several surveys. For, the quantity of unappropriated land cannot otherwise be ascertained. Besides, the great object of the locator was to get the quantity of the land expressed in the entry; and, therefore, the separate surveys will be considered as a continuation of the same operation, in order to effect it. In other words, they will be considered as parts of a whole, which could not be completed without those distinct operations.
It is no objection to say, that by this means large bodies of land may be engrossed by men unable to survey; or, worse still, that very large quantities of land may be protected against future locations, although the quantity really entered for will fall far short of that circumscribed by the entry. Because, the surveyor may be called on to appoint a time, and give notice when he will survey; which, if not attended to, will avoid the entry, and entitle the subsequent locator; but, if attended to, will immediately ascertain the quantity and boundaries.
Warden, contra.
The entry was not special enough; for the boundaries are indefinite, and described with no precision: Since, if it be true, that Banks might go up one side of the fork to Simpson's creek, yet nothing is said about the course which he is to take afterwards. Therefore, although it should even be admitted that he may go up the west side of the fork, that is the Monongalia, to Simpson's creek, yet that does not decide where he is to stop on the Tyger Valley river; for, it does not appear where the creek connects them; and, from a view of the plat, it is extremely probable that it never does connect them at all: So, that although there may be an ultimate point on the Monongalia, yet there is none on the Tyger Valley. Of course, the entry cannot be said to contain space; or to circumscribe any particular portion of land. Therefore, although it may be true, that if the entry had, in fact, contained more land than the warrant called for, it would nevertheless be good, provided the land entered for had been accurately described and bounded; yet, as for want of a back, or connecting line, there is no such description or definite boundary, the entry is essentially defective. Besides, it appears that the beginning was on private land, and the plain words and intention of the law was, that the location should be made on waste and unappropriated land altogether. In which view of the case, the inclusive patents were perhaps sufficient to avoid the entry. But, the first survey certainly satisfied the whole entry; for, it never could have been the intention of the law to allow of any number of surveys; and the fair presumption is, that when the locator has made a survey, he has specially designated the very land which he meant to appropriate.
Doddridge, on the same side. This Court has no jurisdiction of the case. The act of 1779, [c. 13, § 3, 10 Stat. Larg. 58,] directs that caveats shall be tried in the General Court, and that the judgment there shall be final. Therefore, when the District Court law gives the same proceedings in cases of caveat to the District Courts as the General Court theretofore had, it follows, that the judgment of the District Court is to be final too; and, consequently the general clause, relative to appeals, will not give an appellate jurisdiction to this Court, in cases of that kind. Which is the more evident from this circumstance, that in § 6 of the District act, (which declares the jurisdiction of those Courts,) mills, wills and roads are coupled with caveats; but, in the section relating to appeals, mills, wills and roads only, are mentioned; and nothing said about caveats: which looks as if the Legislature had designedly omitted it, on the ground that the judgment of the District Court, in conformity to that of the General Court formerly, was to be final; and that no appeal was intended to lie from it. Besides, the Clerk is to certify all determinations of the District Courts to the Register; but, nothing is said as to the determinations of this Court.
The entry is not special enough, as it does not describe all the boundaries; which ought to be done. For, a description of the beginning is not enough; but the locator ought to mark out the lines along which he means the survey shall proceed; and, although it is urged that this would be difficult in many cases, that does not exclude the necessity of it; since a general description of lines is not impracticable, but may be done with some degree of accuracy. If this be not necessary, the consequence will be, that all future locators will be in danger, or unable to tell where, or how to make their entries; because it will be impossible to know the extent and boundaries of the prior locations. The practice in making entries, when it is opposed to the positive requisition of the act of Assembly, proves nothing; but, if it was important to consider the practice, it would be found to be in our favor: For no entry, so uncertain as this, ever has been contended for. Hunter et al. v. Hall, [1 Call, 206,] turned upon other grounds, and the Inferior Courts have uniformly decided otherwise. So, that if the present entry is sustained, the inconvenience will be incalculably great; and innumerable titles will be shaken. It is monstrous, to call that a sufficient description of boundaries, which cannot be said to express more than a single line; for the distance up the Tyger Valley river is not attempted to be described, nor does it appear that Simpson's creek would, if infinitely extended, ever connect the two rivers. In point of fact, it is believed not to do so. Hence, it is impossible to maintain, that the entry contains any parcel of land in particular; and, therefore, it does not satisfy the law, which requires a reasonable precision; and such an accurate description, as that future locators may know how to make their entries, with some degree of certainty. Large and uncertain entries of this kind are contrary to the policy of the law; because it precludes poor men from an opportunity of making entries, and acquiring settlements.
One survey satisfied the entry; for several surveys cannot be executed on the same entry. The law no where says they may; but the language of the act always supposes a single survey: And, if practice be resorted to, more than one survey upon the same entry, never has been made. The necessity of these separate surveys aids our argument concerning the uncertainty of the entry; because it shews, that the very certainty contended for on the other side, was only got by surveys and acts ulterior to the entry itself.
But the entry, if originally good, was forfeited for want of an earlier survey. The act of October session, 1784, c. 48, p. 7, [c. 9, 11 Stat. Larg. 441,] required surveys previous thereto, to be made before the first of the following February; and future surveys to be made within one year from the date of the entry. This act was in part repealed by the act of 1785, c. 41, p. 31, [12 Stat. Larg. 99,] which requires a previous notice by the surveyor, but then the owner of the entry is to appoint an agent in the county, and to give notice thereof to the surveyor; and on failure, his entry is to become void. Therefore, as the appellant has not shewn such appointment and notice, his entry must be taken to have become void, according to the true construction of this act. But, by the act of 1786, c. 11, p. 14, [12 Stat. Larg. 266,] the time for appointing such agent, and giving notice thereof, was extended for two years from the passing of the act of 1786; and by the act of 1788, c. 21, p. 13, [12 Stat. Larg. 679,] for two years more; after which it was no longer continued; and, therefore, the indulgence expired in the year 1790. For, the act of 1790, p. 8, [13 Stat. Larg. 120,] relates only to failures to return the surveys, and to entries of another kind; which is likewise true of the acts of 1791, c. 4, p. 5, [13 Stat. Larg. 247,] and 1792, c. 7, p. 31, [13 Stat. Larg. 402.] And although c. 8, in the same page, allows two years longer to make surveys, yet that will not save the forfeiture, on account of the failure to appoint the agent: Of course, it does not save the entry in this case. The same observation applies to the acts of 1794, c. 11, § 2, p. 9, of 1795, c. 9, § 6, p. 15, and of 1796, c. 47, p. 29. So, that the failure to appoint the agent within the time prescribed, is not provided for; and, therefore, the entry of Banks was void for that reason.
Wickham, in reply.
This Court clearly has cognizance of the case: For, the District Court certainly has jurisdiction; and, by the laws constituting this Court, a general right of appeal to this tribunal, from the judgments of the District Courts, is given to the citizen in all cases: So that, as caveats are not excepted, it follows that they are included also.
The entry is sufficient. For reasonable certainty, or certainty to a common intent, is enough. Mathematical precision cannot be required. It is not material that the bottom line does not connect the two rivers. For, when the two side lines were given, the other could be found; and all that is required, is, that the locator shall so lay his warrant as that future locators may be enabled to lay theirs with safety; which is done here. The bottom line could not be described, without a survey; and, therefore, to say that it was necessary to describe it, is to contend that a survey should always precede an entry. Whenever the surveyor has gone up the forks, at equi-distances, so as to obtain 58,000 acres expressed in the warrant, he has arrived at the bottom line, and determines the ultimate points of the entry; observing, however, not to go beyond Simpson's creek on either side.
ROANE, Judge.
You say that quantity will give the bottom line: If so, and there be not the quantity of vacant land within those equi-distant points you speak of, can you go beyond them in order to obtain the amount in your warrant? For, if so, do you not contend, that in one case the figure will be bounded by one bottom line, and in the other by another?
Wickham. My meaning is, that the figure shall be certainly bounded by the equi-distant points; and, if there be not a sufficient quantity of vacant land in it, that we cannot go beyond those points to seek for it.
That the entry includes vacant land does not prejudice it; for that frequently happens, and never was objected to; which answers the objection that the entry begins on patented land; for, if any part of it may be on patented land, the beginning may be so too: And, in point of practice, it has frequently been done.
One survey did not satisfy the entry; and others might be made afterwards. This, which is a dictate of reason, is corroborated by the language of the act of Assembly; for, that supposes various surveys upon the same warrant: which is convenient to the holder of the warrant; and prejudices nobody. In this point too, the practice agrees with the reason of the thing, the fair interpretation of the act, and the convenience of the party.
The observation that there is danger, from this doctrine, that large tracts may be protected against subsequent entries, by persons unable to survey, is incorrect; because, the surveyor may be called on to give notice; and, therefore, the inconvenience, if any, may be easily avoided.
The length of time, between the entry and survey, is not material, if the acts of Assembly be fairly considered; but, upon that point, Mr. Randolph, who follows me, will speak at large.
Randolph, on the same side. The Court has jurisdiction. For, wherever there is a subordinate Court and a revising Court, the latter has a general superintending power. This Court has general appellate jurisdiction by the express words of the act of Assembly; and, as the case of caveats is not excepted, they also are included.
The entry is sufficient. For, only reasonable certainty, or certainty to a common intent, is requisite. Co. Litt. 303. It would have been impossible to state the bounds more particularly, in a country, at that time probably filled with hostile tribes of Indians. It is enough to give a general description of the place, and it is the business of the surveyor to ascertain the lines with precision; which is proved by the remark, that it is made his duty, by the act, to see to the length and breadth. The meaning of the entry was, that they should begin at the confluence, and go up the forks, as far as Simpson's creek, for quantity; and, that is the usual course in business of this kind. It was not necessary to say in the entry, that they were to go across from the mouth of Simpson's creek to Tyger Valley river; for, that was implied; and, if the entry had said so expressly, a future locator would have been no wiser, than without it. The entry, therefore, was precise enough; and of course the objection upon that ground, will not avail the appellee.
The length of time does not forfeit the entry, as no notice to survey was given. The act of 1785, altered that of 1784, as to the time; and, if Banks failed to appoint an agent, as that act required, it was matter of evidence, and ought to have been shewn in the finding; but, as it is not, the Court would, if necessary, presume that it was done. But, this is unnecessary to be contended for; because, the continuing acts of '88-'90-'91-'92-'94-'95 and '96, do completely save the entry; for their provisions are general; and contain no exceptions with regard to the appointment of agents. Consequently, they extend to this, as well as to any other case. It is impossible, in short, to take the case out of the operation of those laws; for the declaration is so general that no exception can be made.
The separate surveys are allowable; for they do no prejudice: and the warrant itself expresses one or more surveys; which looks as if the Legislature contemplated cases of this kind, as there would often be a necessity to make them: So, that although there is no express declaration that separate surveys on the same entry may be made, yet it is fairly to be collected from the general complexion of the law, and from the reason of the thing.
Cur. adv. vult.
April Term, 1803.
The case was this term argued again by Williams, Call, Randolph and Wickham, for the appellants; and Warden and Doddridge, for the appellees.
OPINION
Lyons, Judge.
Afterwards delivered the resolution of the Court; that Martin the appellee shewed no title to the warrant under which the survey was made, as it did not appear that it had ever been assigned to him; and, therefore, that the judgment of the District Court was to be reversed, and the caveat dismissed with costs.