2 Ky. 228 | Ky. Ct. App. | 1803
Both the parties to this cause claim the land in dispute, under settlements and pre-emptions, of the hind which were to be located on vacant lands; therefore, it will be necessary to advert to the dates of their respective certificates to ascertain which of their claims is entitled to the preference in that respect, as well as to their respective locations, entries, and surveys to ascertain in every other point of view whether they have proceeded in completing their titles, as the law requires. It is proper to begin with Morgan, who was complainant in the court below, as assignee of Ahijah Woods; because it must appear, that his claim is of prior date .or higher dignity, and has been legally pursued before he can have relief in chancery against Robinson.
Robinson obtained his certificate from the commissioners, November 6, 1779, for a settlement of 400 acres of land, lying on Boone’s creek, adjoining a survey of the said Robinson’s, and the pre-emption of 1,000 acres adjoining the settlement. The entry of the settlement with the surveyor is, in substance, the same as its location with the commissioners. But in neither of them is it expressed, in what manner the settlement was to adjoin Robinson’s former survey; and this'defect gives rise to another question which is new and difficult. To pronounce the settlement void for this uncertainty, as has been done by the district court, may be too rigid. Had the settlement been surveyed to adjoin the old survey on every part, and extended equal distances from each of its lines, the proceedure would have been very consonant to the principles of all the decisions of this court in cases where the location only contained a call to include some object: and this court, after much consideration, thinks it would have been proper to have done so. It is true, that in the case of Ifenney against Whitlidge, this court decided concerning a pre-emption appendant to a settlement, that as the expression in the commissioners’ certificate, to adjoin, does not necesarily moan, to include, the pre-emption ought not to be restrained to adjoin the settlement on every part. But the princijtal reason then adduced was, that the law did not require pre-emptions of the kind to be located with the commissioners; and that the insertion of the expression in the certificate was only a proper repetition of the expression, adjoining to, which is used in the law: consequently, that the claimant can not be bound by a supposed location which he did not make, nor was required to make. To which might have been added, that this expression in the law, considered as a restriction, can not with propriety be taken to mean, that the preemption shoqld adjoin the settlement on every part, and extend
Ordered, that the opinion of this court, delivered this term, in the case of David Robinson against Charles Morgan, be amended by inserting the words “sets off” between the word “two” and the word “surveys,” in the paragraph (page 163), “Morgan should hold all the land, and no more, which will fall within both of these two surveys;” and then the paragraph will stand thus: Morgan should hold all the land, and no more, which will fall within both these two sets of surveys. And it is further ordered, that the following words be annexed to the said clause, viz: that is to say, he should only hold so much of either of' these sets of surveys as will also fall within the other.