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Absent....LIVINGSTON, J. STORY, J. and Tonn, J.

ERROR to the Circuit Court for the District of Kentucky, in a suit in chancery.

The facts of the case, as stated by the chief justice in delivering the opinion of the Court, were as follow:

The land law of Virginia, which gives a right of preemption to

those who had marked & im

proved land

ment was

Charles Simms, the Plaintiff in error, having obtain- before the year ed a judgment in ejectment for certain lands lying in 1778, refers that right to Kentucky, in possession of the Defendants, for which the time when the said Simms held a patent prior to that under which the improvethe Defendants claimed, a bill of injunction was filed by made, and to them, praying that he might be decreed to convey to the time of the them so much of the land in their possession as was included within his patent.

passage of the

act, and not to the time when the claim for such pre-emp

Court of com.

good, although

It appeared in evidence that, in the year 1776, a com- tion was made pany, of whom John Ash was one, marked and improv- before the ed several parcels of land lying on the waters of Salt missioners. river. John Ash made an improvement on the waters If an entry be of the Town Fork of Salt river, soon after which Wil- made by the assignee of a liam M.Collom, another member of the same company, pre-emption made an improment at a spring on the same stream, right, it will be about seven hundred yards below him. Ash complain- the name of ed that M Collom had encroached on his rights by ap- the assignor be proaching too near him; upon which, they agreed to in the entry, decide by lot who should be entitled to both improve- if the entry rements. Fortune determined in favor of Ash, and fer to the warM.Collom relinquished his rights, and improved else- mention animwhere. Ash afterwards amended both improvements, provement, and planted peach stones at that which was made by place be dehimself.

not mentioned

rant, and if it

provided the

scribed with 'sufficient certainty in other respects.

In April, 1780, before the Court of commissioners appointed in conformity with the act generally denomi- A bill in equinated the previous title law, John Ash obtained a cer- judgment at ty to enjoin a tificate in the following words: "John Ash, senr. claim- law is not to be ❝ed a pre-emption of 1,000 acres of land in the district considered as an original bill, "of Kentucky on account of marking and improving and therefore "the same in the year 1776, lying on the waters of the it is not ne


SIMMS "Town Fork of Salt river, about two miles nearly east ซ. "from Joseph Cox's land, to include his improvement, GUTHRIE "Satisfactory proof being made to the Court, they are ❝of opinion that the said Ash has a right to a pre-emp❝tion of 1,000 acres of land, to include the above location, and that a certificate issue accordingly."

& AL.

cessary in a

Court of limited jurisdiction to make other parties, if the

a doubt as to

This certificate was assigned to Terrell and Hawkins, introduction of who, in April, 1781, made the following entry thereon those parties in the surveyor's office of the county in which the lands should create lie: "Terrell and Hawkins entered 1,000 acres, No. the jurisdiction" 1226, on the waters of the Town Fork of Salt river, of the Court. about two miles nearly east from Joseph Cox's land, A Complai- 166 nant in equity to include his improvement." This entry was surcannot obtain veyed and patented, and the Defendants claim under it. a decree for The date of this patent was on the 6th of March, 1786.

more than he

has asked in his bill.

The entry of Charles Simms was made on the 13th of April, 1780, his survey on the 25th of the same month, and his patent issued on the 19th of April, 1783.

The claim under an improvement being of superior dignity to that of Charles Simms, his title must yield to that of the Defendants in error, if theirs be free from objection.

The land law of Virginia, under which all parties claim, requires that locations shall be made so specially and precisely that other persons may be enabled with certainty to locate the adjacent residuum.

The situation of Kentucky, covered with conflicting titles to land, has made it necessary that this requisition of the law should be enforced with some degree of rigor, while the ignorance of early locators, the dangers to which they were exposed, and the difficulty of describing, with absolute precision, lands which were held by a very slight improvement made on a single spot, and which could not be immediately surveyed, induced the Courts of that country, for the purpose of preserving entries as far as was consistent with law, to frame certain general rules of very extensive application to cases which occurred. One was, that the designation of any particular spot of general notoriety, or such a description of it in relation to some place of general notoriety


as would clearly point it out to subsequent locators, SIMMS would give sufficient notice of the place intended to be appropriated, and that a failure to describe the external ¡GUTHRIE figure of the land should be supplied by placing the im& AL. provement in the centre, and drawing round it a square with the lines to the cardinal points, which should comprehend the quantity claimed by the location.

The Court below was of opinion that there was suf ficient certainty in the certificate of John Ash, senr. and in the entry afterwards made with the surveyor by Terrell and Hawkins; that the improvement intended to be claimed by Ash was that which he won of M⚫Collom, and that the land should be surveyed in a square form with the lines to the cardinal points, including the improvement won of M Collom in the centre. A survey having been made in conformity with this interlocutory decree, the Court ordered the Defendant below to convey severally to the Plaintiffs in that Court so much of the land claimed by them as was included in his patent. To this decree Charles Simms has sued out a writ of error.

SWANN, for the Plaintiff in error, contended,

1. That Simms having the first entry and first patent and judgment at law in ejectment, his title must prevail.

The entry of Terrell and Hawkins in 1781 cannot be connected with the settlement of Ash. It does not refer to it, and the want of such reference cannot be aided by any extrinsic evidence. The entry must be in itself sufficient, or it can avail nothing. Harding's Reports, 108, Patterson's devisees v. Bradford.

2. The entry, if it can be connected with the certificate of the commissioners in favor of Ash, is still void for uncertainty. There were two settlements by Ash, and it does not appear to which the commissioners alluded ; or if it does appear to which they alluded, it was to the first settlement of Ash, and not to that which was begun by M Collom. Hughes's Reports, p. 95, Harding's Reports, 140, Craig v. Dorrain. The land ought to have been surveyed from Ash's first settlement, and not from that which he won from M'Allum.




& AL.

JONES, contra.

1. The first objection is, that the right of pre-emption never belonged to this land, because it is said that Simms had a prior claim.

But the act only excludes from the right of pre-emption, lands to which a legal title had been acquired prior to the date of the act. The law refers back to the improvement, and gives the pre-emption, notwithstanding an intermediate title. Simms must show that his title commenced before the passing of the land law.

2. The second objection relates to the vagueness of the entry.

The entry of Terrell and Hawkins was made upon warrant No. 1226, and refers to it. That warrant was lodged with the surveyor, and refers to the pre-emption certificate of Ash.

The cases cited to show that you cannot make a vague entry certain by reference to another paper, are of recent date, and if they are to be understood as the opposite counsel contends, would be in opposition to the analagous cases, in the case of Patterson's devisees v. Bradford, Harding, 108, it is said that if the entry calls for an improvement you may refer to the certificate to show where the improvement was. So in Greenup v. Kenton, Harding, 16, the Court decided that you might refer to another paper to show what was ambiguous in the entry.

It is also said that it appears by extraneous evidence that there were two improvements by Ash, and therefore that the entry is uncertain.

The question is whether the improvement was suiciently notorious to give notice to subsequent locators. It might have been as notorious as any other object. The cabin, the spring, the run and the location of Joseph Cox were all well known. But it is in proof that one of the improvements was abandoned. They were near each other and formed only one plantation or settlement. The evidence is that Ash's improvement means the cabin where his widow now lives.

SWANN, in reply.



The pre-emption of Ash ought to be laid off from his GUTHRIE first improvement. Ash renewed both improvements, & AL viz. Ash's and M.Collom's, as such. The question is, which was Ash's settlement at the time referred to in the certificate of the Court of commissioners? What did he mark and improve in the year 1776? It is the improvement made in 1776 only to which the commissioners refer. The cabin was built after the certificate.

February 14th. Absent....JOHNSON, J. and TODD, J.

MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows:

The first error assigned is that the entry and survey of the Plaintiff in error being prior to the claim made by Ash before the Court of commissioners, gave him a legal right to the land so entered and surveyed, not to be affected by the subsequent claim of Ash.

The words of the act of assembly are, "That all "those who, before the said first day of January, 1778, ❝had marked out or chosen for themselves any waste ❝or unappropriated lands, and built any house or hut, "or made other improvements thereon, shall also be "entitled, on the like terms, to any quantity of land, to ❝ include such improvement, not exceeding 1,000 acres, "and to which no other person hath any legal right or "claim."

The Court is clearly of opinion that the words of the law refer to the time when the improvement was made, and to the time of the passage of the act; not to the time when the claim, founded on that improvement, was made to the Court of commissioners. If the land, when improved, was waste and unappropriated, if, at the passage of the act, no other person had any legal right or claim" to the land so improved, such right could not be acquired until that of the improver should be lost.

The second error is, that the entry made by Terrell and Hawkins with the surveyor has no reference to the

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