2 Ky. 255 | Ky. Ct. App. | 1803
The appellants claim, under an entry for 800 acres of land, made in the name of William McConnell, the 18th day of May, 1780, on a common treasury warrant, and the appellee claims under a certificate of pre-emption for one thousand acres of land, granted to him as heir-at-law of Samuel Wells, deceased, by the county court of Bourbon, on the — day of September, 1786.
The principal point to be settled in this suit is, did the land law authorize the county court of Bourbon to grant Wells a certificate for a pre-emption right, which would be paramount to the right previously acquired by McConneirs entry to part of the same land?
It may be admitted that Wells’ ancestor might justly have obtained from the commissioners a certificate of pre-emption for the land in contest; but it' must also be admitted that the opportunity and privilege of making application for it expired with the 26th day of April, 1780; and as the land law then stood, his right became dormant, if not forfeited. Therefore, the decision of this question depends on the third section of an act which passed afterward at the May session, 1781, entitled “ an act to amend the act for adjusting and settling the titles of claimers to unpatented lands under the present and former government, previous to the establishment of the commonwealth’s land office,” which section is in the following words: “ And whereas, the commissioners appointed for the purpose of carrying into execution the before-recited act, were discontinued in the district of Kentucky, whereby many good people in this commonwealth were prevented from proving their rights of settlement and pre-emption in due time, owing to their being engaged in the public service of their country. Be it therefore enacted, that the county courts within which such lands may lie, are hereby empowered and required to ■ hear and determine such disputes as have not heretofore been determined by commissioners acting in that country under the act of assembly, taking for their guide and direction the acts of assembly whereby the commissioners were governed; and the register of the land office is hereby empowered and required to grant titles on the determination of such courts, in the same manner as if the commissioners had detex*mined the same.”
But it is argued that a preamble can not limit or extend the enacting clause of a statute. In the general this is true where the enacting clause is expressly more or less "extensive than the preamble ; but in some instances the preamble must from necessity be used as a clue to find the intention of the legislature. Where the enacting clause of an act is ambiguous, the preamble may be used to explain it; and to give the section under consideration any possible effect, recourse must be had to its preamble. Strike out the expressions in the preamble of the section which relate to the inhabitants of Yirginia, and their being employed in her public service, and then the enacting clause, aided by the remainder of the preamble, would have vested the county courts in the dis
“ May 18, 1780. William McConnell enters 800 acres on treasury warranty beginning about half a mile below the mouth of Mill creek, on the east fork of Licking, to include the forks thereof, and to run up both sides of both creeks for quantity.”
And it seems to the court, that the survey made on McConnell’s entry should have been as near a square as the calls of the entry would permit, commencing in the middle of the north fork of Licking, one half mile on a direct course below the mouth of Mill creek, so that the line passing through that point would have extended the same distance therefrom each way, and the survey have included the junction of those water courses as nearly at equal distances from the lines, run at right angles to the first line, as that those lines in their whole extent would have included both those water courses: that is to say, both the water courses should so have crossed the upper line of the survey as that their junction would have been as nearly at equal distances as possible from the side lines, and the north fork should have crossed the middle of the first line, half a mile on a direct course from the lower part of the mouth of Mill creek.