4 Ky. 53 | Ky. Ct. App. | 1808
OPINION of the court, by
The proper construction of the following entry, to wit: 4‘ Edmund Hawkins enters 1000 acres, on the waters Jessamine, four miles nearly north from Dick’s river, to begin at the head of the first branch of Jessamine, running down the same one mile,extending northwardly for quantity,” is the only question to be decided by this court.
The validity of the entry, and the objects called for therein, are admitted by the agreed case made between the parties ; it will therefore only be required to consider its several calls. The first is, “to begin at head of the first branch of Jessamine, running down the same one mile.” The beginning being admitted, it willonly be necessary to construe the expressions “ mng down the same. these expressions, taken m conjunction with the other calls of the entry, clearly import that the branch was intended to be one boundary of the claim ; and that it was to form the base of the survey. This is obvious from the next call, “ to extend northwardly for quantitywhich will next he considered. If the question be asked, extending from what ? the answer readily presents itself, from the branch; down which the entry had previously called to run. This call was necessary to shew on which side of the branch the land was to lie; for in the absence of it, the
The only doubt is as to the proper construction of the word northwardly, as used in this entry.
Upon this point we will premise, that it has long been a settled rule in the construction of entries, that the rectangular form shall be preserved, unless the expressions of the entry necessarily require a different mode of surveying. The question, does the expression northwardly, necessarily require a departure from that mode of surveying ? This can only be, if the word northwardly must necessarily be understood as meaning in this case the same as north, in common parlance they do not mean the same thing. North conveys a definite idea, northwardly does not; the latter, both in propriety of speech and in common parlance, means towards, or approaching towards the north, rather than towards any of the other cardinal points. The cases in this court where northwardly, southwardly, &c. have been construed the same as north and south, have all been cases where that construction was adopted from necessity, there being no other call in the entry which could give it figure or certainty; so that if that construction had not been adopted, and the entry thereby reduced to a definitive point, it must have been declared void for uncertainty. No such necessity exists in this case. If the branch be considered the base of the survey, and the call to run northwardly as only descriptive of the side of the base line on which the land is to lie, the law, and the rules Gf construction, will give figure to the survey, without violating the natural import of the expressions. From these considerations we are of opinion, that in this, and other cases similarly circumstanced, where an entry gives a base line, and calls to ran off from that base northwardly, southwardly, &c. these expressions should be considered as a general description of the side of the base line on which the land is to lie ; and that the survey should be constructed upon that base, and at right angles thereto. This principle was established in the case of Smith vs. Grimes, in the old supreme court, Hugh. Rep. 18 ; and is believed to be
Edmund Hawkins’s entry of 1000 acres should therefore be surveyed, by beginning at the figure 5, representing the head of the branch, on the connected plat, and running thence down the branch, with the meanders thereof, one mile, when reduced to a straight line ; and from the beginning and the termination of said line of one mile, extending lines off from the branch north-wardly, at right angles to the general course of so much of the branch as will be embraced by the survey, so far that a line, drawn at right angles to those two last mentioned lines, and parallel to the general course of the part of the branch so embraced as aforesaid, will include the quantity of one thousand acres.
This opinion and decree being variant from the decree of the inferior court, it is therefore decreed and ordered, that the said decree of the inferior court shall be, and the same is hereby reversed ; and the cause is remanded to the court from whence it came, with directions to enter up a decree between the parties, in conformity with the foregoing opinion and decree of this court; and to make such further orders and decrees (not contrary thereto) between the parties, as law and equity may require.
