44 U.S.

187
3 How. 187
11 L.Ed. 554

LESSEE OF ANGELICA CROGHAN ET AL., PLAINTIFF,

v.
JOHN NELSON, DEFENDANT.
January Term, 1845

THIS case came up on a certificate of division in opinion between the

judges of the court below. It was an ejectment brought in the Circuit Court
of the United States for the district of Kentucky.
The case was this:
On the 16th of August, 1784, William Croghan, under whom the plaintiff
claimed title, made the following entry: 'William Croghan, assignee,
enters 1000 acres of land, part of a military warrant, No. 2023, beginning
at a fork of Mayfield creek, about two miles by water above Fort
Jefferson, where a branch, occasioned by the high waters from the
Mississippi, runs out of said creek, and at high water empties into the
river at the upper end of the iron banks; from said beginning 500 poles,
when reduced to a straight line; and then off from the branch towards
[the] Mississippi on a line parallel to Mayfield creek, until a line from the
extremity of said line, parallel with the first line, will strike Mayfield
creek, to include the quantity.'
On the 29th of November, 1826, a patent was issued to Croghan by the
governor of Kentucky, which described the land as follows: 'Beginning at
a fork of Mayfield creek, occasioned by high water from the Mississippi
river, and which creek or bayou empties into the Mississippi at the upper
end of the iron banks, on a walnut, sweet gum, and ash standing on the
west bank of the creek; running thence down the bayou or branch
aforesaid with the meanders thereof, S. 18x W. 134 poles, S. 36x W. 200
poles, S. 48x W. 72 poles, S. 18x W. 14 poles, S. 18x W. 54 poles, S. 30x
W. 120 poles; thence S. 110 poles, to two ash trees, a hackberry, and red
bud on the west bank of the bayou; thence N. 75x W. 206 poles, to an
elm, a sycamore, and box elder on the bank of the Mississippi river;
thence up the same, with its meanders, and binding on it at low water-

mark, N., &c., &c., to a walnut and two cotton wood trees at the mouth of
Mayfield creek; thence up the creek, with the several meanders thereof,
and binding on the same at low water-mark, & c., &c., to the beginning.'
In 1830, Nelson took out a patent for the fractional northwest quarter of
section 32, &c., containing 103 acres.
The whole dispute being one of location, it is impossible to understand the
opinion of the court without a map or diagram.
A, B, C, D, is the survey made for Croghan. A being the beginning
station, and D the mouth of Mayfield creek. The defendant contended that
the plaintiff's line should run from B to E, and from E to D, in which case
it is manifest that it would not include the land granted to Nelson, the line
B E being parallel to a line drawn from A to D.
Upon the trial, the counsel for the defendants asked the court to instruct
the jury, that 'if they believed from the evidence that the course of
Mayfield creek, from A to D, is correctly laid down, then the line from B
towards the Mississippi river should be run parallel to that to conform to
the entry; and if, in running that parallel line, they shall believe from the
evidence that the improvement of the defendants is left out, they ought to
find for the defendants. But the court were divided in opinion on the
point, whether the second line called for in the entry should run from B to
E, or whether the line from B to C should be taken, and recognised as the
true and proper line, it being the line on which the patent was founded.
One judge being of opinion, that for all the land south and west of a line
from B to E the patent was void, and the other judge being of a contrary
opinion.
Upon this point, the case came up.
It was argued by Mr. Underwood for Croghan's heirs, who contended that
the entry was 'precise enough for others to locate other warrants with
certainty on the adjacent residuum,' as required by the act of 1779. The
fork of the creek being found, it would be easy for a subsequent locator to
run the line to B. Arrived there, and desiring to locate the 'adjacent
residuum' below, I think he has the means of knowing and ascertaining
'precisely' the course which Croghan's line from B towards the
Mississippi must pursue, and the distance in that direction.
Entries for land are addressed to the common good sense of those engaged
in appropriating the vacant domain, and are to be 'special and precise,' so
that subsequent locators shall not be deceived or deluded to their injury.

An entry is to be understood and taken as it would have been understood

on the day it was made. See 1 Bibb. (Ky.), 35, 84; 2 Id., 105; Hard. (Ky.),
287.
Rectangular figure is not to be departed from without a strong indication
of a contrary intent. 2 Bibb. (Ky.), 120; see also cases referred to under the
29th rule, in the index to 3 Bibb. (Ky.), under the head Entries.
A locator is not bound to give the best possible description, but it should
be certain to a common intent, and not misleading. 2 Bibb. (Ky.), 144; 1
Id., 73, 64.
With these rules in the mind of a subsequent locator, wishing to ascertain
the exact position of Croghan's 1000 acres, and with the entry before him,
let us examine how he would proceed and reason upon the subject. He
could not know the exact position of the lines without making a survey of
the entry; but that is equally true in respect to every entry, no matter how
special. He would know that the natural objects called for were to
constitute boundaries of the survey, when made. Thus, a subsequent
locator would know, by inspecting the entry, that the branch down
towards the iron banks from the fork of the creek at A, upon the plat, to a
point 500 poles, when reduced to a straight line, from the beginning,
constituted part of the boundary. He would also know that Mayfield
creek, from the fork at A down towards its mouth, constituted another
portion of the boundary. With this knowledge, he would find no difficulty
in locating the adjacent residuum, lying eastwardly of the branch and the
creek, without interfering with Croghan's entry. Conceding that a
subsequent locator would be ignorant of the true course of the line from B
upon the plat towards the Mississippi river, until a survey was actually
made, still, if he desired to enter the land west of the branch below
Croghan's entry, and adjoining Croghan's tract, he could have done so with
perfect safety by calling to adjoin Croghan, without giving the course. If a
subsequent locator wished to enter land below the mouth of Mayfield
creek, lying between the river and Croghan's entry, supposing there might
be land thus situated not covered by Croghan's entry, he would find no
difficulty in making such an entry without interfering with Croghan, by
calling to bind on Croghan and the river. Thus it is manifest, that the
'adjacent residuum,' in the language of the act of 1779, all around
Croghan's entry, might have been appropriated by a subsequent locator,
without interfering with Croghan's entry. I therefore insist, it is 'certain to
a common intent, and not misleading,' in the judicial language of the
Appellate Court of Kentucky. A better description than that given will
therefore not be required.

Mr. Underwood then proceeded to argue, that the line from B should run,
not parallel with that part of the creek between A and the mouth of it, but
parallel with the general course of the stream, including the part above A,
because this would include only 835 acres, and the locator's intention was
to enter 1000.
He then referred to a number of Kentucky cases to show, that the intention
of the locator must be carried out, &c., &c.
Mr. Justice McKINLEY delivered the opinion of the court.

This is a case certified to this court from the Circuit Court for the district of
Kentucky.

The plaintiffs brought an action of ejectment, in that court, against the

defendants; and to support their action, they read to the jury a patent for 1000
acres of land, granted by the state of Kentucky to Charles Croghan, bearing
date the 29th of November, 1826, and proved title in themselves by the will of
the said Charles Croghan. The plat marked A was shown to the jury; and the
surveyor proved, that the fork of Mayfield creek, at the letter A, was correctly
laid down; that five hundred poles, on a straight line, on the branch leading
from Mayfield creek, would extend the line to letter B, on the plat, where one
of the patent-corners was found; and that the plat truly represented the land
granted by the patent.

The defendant then read the following entry of William Croghan, assignee, for
1000 acres, dated 16th of August, 1784, on which the patent is founded, to wit:
'William Croghan, assignee, enters 1000 acres of land, part of a military
warrant, No. 2023, beginning at a fork of Mayfield creek, about two miles by
water above Fort Jefferson, where a branch, occasioned by the high waters
from the Mississippi, runs out of said creek, and at high water empties into the
river at the upper end of the iron-banks; from said beginning 500 poles, when
reduced to a straight line; and then off from the branch towards the Mississippi,
on a line parallel to Mayfield creek, until a line from the extremity of said line,
parallel with the first line, will strike Mayfield creek, to include the quantity.'
The defendants then offered in evidence a patent from the state of Kentucky to
Hugh Nelson, for 103 acres of land, bearing date the 17th of December, 1830;
and proved by the surveyor, that the beginning of the entry was at A, on the
plat, and that the end of the first line was at B, and if a line were run from B
towards the Mississippi river, in a direction parallel with the general course of
Mayfield creek, for twelve miles above the fork at A, it would be the red line

extending from the letter B to the Mississippi river at F. It was also proved, if a
line were run from the corner at B parallel with Mayfield creek, below the fork,
to the letter D, at the mouth of the creek, it would run from B to E, and leave
out the land claimed by the defendants. The surveyor also proved, that the
various lines on the plat were correctly laid down from actual survey.
4

'The counsel for the defendants then prayed the court to instruct the jury, if
they believe, from the evidence, that the course of Mayfield creek from A to D
is correctly laid down, then a line from B towards the Mississippi river should
be run parallel to that line, to conform to the entry; and if, in running that
parallel line, they shall believe, from the evidence, that the improvement of the
defendants is left out, they ought to find for the defendants. But the court were
divided in opinion on the point, whether the second line called for in the entry
should run from B to E, or, whether the line from B to C should be taken and
recognized as the true and proper line, it being the line on which the patent was
founded. One of the judges being of the opinion, that for all the land south and
west of a line from B to E the patent was void; and the other judge being of a
contrary opinion. They were also divided in opinion, for the foregoing reasons,
whether the foregoing instructions ought to be given or refused.'

By a statute of Kentucky, passed the 26th of December, 1820, it is required,

that all surveys thereafter to be made on entries west of Tennessee river should
be run according to the calls of the entry. And 'to enable the register to ascertain
whether the survey is made according to entry, a copy of the entry shall be
returned to the register's office, with the plat and certificate of survey; and any
patent issuing on a survey made contrary to the location shall be void to all
intents and purposes, so far as the same may be different and variant from the
location.' The survey in this case was made on the 5th day of November, 1825;
and the patent under which the defendants claim, dated the 17th day of
December, 1830, was granted for land sold by the state subsequent to the date
of the patent under which the plaintiffs claim title, and which covers part of the
land claimed by the defendants. This brings in question the legality of the
survey, and the construction of the entry on which it was made, and leads to an
examination of the points certified for our determination.

But before we enter on that duty it will be proper to consider the circumstances
in which the locator was placed when he made the entry. It was proved in the
Circuit Court, that along this branch there was a very dense cane-brake, and the
greater part of the land covered by the patent is still a dense cane-brake. It was
also proved, that a line run parallel with the general course of Mayfield creek,
for twelve miles above the fork, and crossing the branch, at the termination of
the 500 poles, from A to B, on the plat, would strike the Mississippi river at F,

on the plat, a considerable distance below the corner called for in the patent at
the letter C. And it appears by the plat that the creek continues to run nearly the
same course for 300 or 400 yards below the fork, and then runs north of
northwest for about 300 poles. Now we have a right to infer, from the facts
proved, that all the land included in Croghan's patent, and all the river bottom
above Mayfield creek, at the date of the entry, was a dense cane-brake;
because, if an object, permanent in its nature, is proved to exist at the time of
the trial, it is fair to infer that it existed at the time the entry was made. Crochet
v. Greenup, 4 Bibb (Ky.), 158. The history and topography of the great valley
of the Mississippi proves satisfactorily, that where there is a canebrake now
there was one sixty years ago; and this fairly induces the belief that the cane
upon the rich and alluvion lands is coeval with the oldest trees of the forest. As
the locator had the means of ascertaining the course of Mayfield creek above
the fork, where it ran across the high lands, and where there was no cane, it is
reasonable to suppose, from the calls of the entry, that he believed that
Mayfield creek, below the fork, ran nearly at right angles to the branch in its
general course to the river. And he had a right, from the circumstances, also to
believe, that the distance from the fork of the creek to the river was about two
miles, when in fact it was less than one mile.
7

It is obvious from these circumstances, and the calls of the entry, that the
locator believed the survey to be made upon it would approach as near to a
parallelogram as the irregularity of the two natural boundaries would permit.
We are led to the conclusion, therefore, that these mistakes were all occasioned
by the impracticability of ascertaining the relative positions of the objects
called for, and the courses and distances of the lines necessary to include the
quantity of land specified in the entry. But mistakes of this character have been
corrected, as far as practicable, by the courts of Kentucky, in giving
construction to entries, and particularly in two recent cases like this between
military claims and purchases from the state. Rays v. Woods, and Daniel, &c.
v. Allison, 2 B. Mon. (Ky.), 224. Keeping these mistakes in view, we will
proceed to give construction to the entry. The call to run from the termination
of the base line at B, 500 poles from the fork of the creek at A, and off from
the branch towards the Mississippi on a line parallel to Mayfield creek, until a
line from the extremity of said line, parallel with the first line, will strike
Mayfield creek; to include the quantity, presupposes that a line from the
termination of the base line on the branch, parallel with Mayfield creek, to
include the quantity, would terminate before it reached the river, otherwise the
locator would have called to run to the river. But it was found, when they made
the survey, that the whole area, bounded by the branch, from the termination of
the 500 poles, Mayfield creek to its mouth, and the Mississippi river, down to
the letter E, the point where a line running from the termination of the base

line, parallel to Mayfield creek, strikes the river, would include but 887 acres,
and when reduced to straight lines, would present a rhomboidal figure, with two
extremely acute, and two extremely obtuse angles, instead of the figure which
must have been in the mind of the locator when he made the entry. We might,
therefore, upon the authority of the cases referred to in 2 B. Mon., sustain the
survey on the ground of the mistakes of the locator, evidently made under the
influence of causes well calculated to mislead him. But there are other reasons
and other authorities upon which this entry and survey may be sustained. It is a
well settled rule of construction, that where there are calls in an entry repugnant
to each other, those which are inconsistent with the main intention of the
locator, manifested by the words of the entry, shall be rejected to give effect to
the entry. For example, distance shall prevail over course, where it appears by
other calls in the entry the course has been mistaken. Smith v. Harrow and
others, 1 Bibb (Ky.), 104. A call to include a natural object will prevail over a
mistaken distance called for to reach the object. Preeble v. Vanhoozer, 2 Bibb
(Ky.), 118; McIver v. Walker and another, 9 Cranch, 173. Testing the entry by
these rules, has it been properly surveyed?
8

Three of the lines are natural and permanent boundaries, except the line on the
river, which may be extended in length; the fourth is artificial and movable. It
has been already shown that a line from the termination of the line on the
branch, at B, to the river at E, and thence up the river to the mouth of Mayfield
creek, will not include the quantity of land called for in the entry. If it is
practicable, by a reasonable construction of the entry, to give the whole
quantity of land called for, it is the duty of the court to give such construction.
The mistakes referred to have defeated the intentions of the locator, no doubt,
as to the figure of the survey; but, like all prudent locators, he provided, as far
as he could, against the influence of such mistakes, by requiring that the two
last lines of the survey should be so run as to include the quantity of land called
for in the entry. To these two lines he gave course, but gave no specific distance
to either, that they might be run long enough to include the quantity. The first of
these lines was to run from the termination of the base line at B, 'off from the
branch towards the Mississippi, on a line parallel to Mayfield creek,' but no
specific distance is given, nor is any natural object called for as the termination
of this line. Its termination was to be governed, therefore, by the relative
positions of the objects previously called for, and the actual distance of the line,
on the branch, from the river, and by the necessary course and distance that the
first and second of these two lines should run to include the quantity; and
therefore he continues the call by saying, 'until a line parallel to the first (the
base line) will strike Mayfield creek, to include the quantity.' The word 'until,'
in grammatical construction, modifies and qualifies the words used to give
course and distance, and, in legal construction, the call for course must yield to

the call for quantity, the latter being the most important call in the entry.
9

The great and leading object of every entry is to obtain the quantity of land
specified in it; every other call, therefore, must be regarded as intended to effect
this principal object, and as subordinate thereto. The call, to run a line parallel
with the first, or base line, is, therefore, repugnant to the call to include the
quantity, and must be rejected. Because, if this line had been run parallel with
the base line, the quantity of land would not have been included. And for the
same reason the words 'on a line parallel to Mayfield creek' must be rejected,
they being, also, repugnant to the call to include the quantity. The survey, has,
therefore, in our opinion, been made in conformity with the entry, by running
from the mouth of Mayfield creek, down the river, to the corner at C, that
being the distance required to include the quantity; and the line from B, another
corner, has been properly run to C, that being the course and distance necessary
to close the survey and to include the quantity of land called for in the entry. It
is the opinion of this court, therefore, that the Circuit Court ought to have
refused the instruction prayed for by the defendant's counsel.

10

It is ordered, that it be certified to the Circuit Court, that the line from B to C
'should be taken and recognised as the true and proper line,' and that the
instructions prayed by the defendant's counsel ought to be refused.

11

Mr. Justice McLEAN.

12

'Croghan, assignee, enters 1000 acres of land, part of a military warrant, No.
2023, beginning at a fork of Mayfield creek, about two miles by water above
Fort Jefferson, where a branch occasioned by the high waters of the Mississippi
runs out of said creek, and at high water empties into the river, at the upper end
of the iron-banks; from said beginning, 500 poles when reduced to a straight
line, and then off from the branch towards the Mississippi, on a line parallel to
Mayfield creek, until a line from the extremity of said line, parallel with the
first line, will strike Mayfield creek to include the quantity.'

13

By a statute of Kentucky passed in 1820, all entries on military warrants west

of the Tennessee river are required to be surveyed agreeably to their calls; and
any survey and patent which shall cover more land then the entry calls for, is
declared to be void as to such surplus. There can be no objection to the validity
of this law, as it impairs no right.

14

Under this statute, the court were requested to give a construction to the entry
in question. The prayer was, that the court should instruct the jury, 'if they

believe from the evidence that the course of Mayfield creek, from A to D, (the
letter A being at the fork of the creek, the beginning of the entry, and the letter
D at the mouth of the creek,) is correctly laid down, then the line from B (the
termination of the first line of 500 poles) towards the Mississippi, should run
parallel to that, or (in other words) to Mayfield creek, to conform to the entry.'
15

The only dispute is as to the second line, which is 'to run from the branch
towards the Mississippi, on a line parallel to Mayfield creek.' And this was the
instruction prayed for, and which was rejected by the court. Had the instruction
been in the very words of the entry, there would not have been a closer
conformity with it.

16

The disputed line was called for by the entry 'to run parallel to Mayfield creek.'
Now one line to be parallel to another must be equidistant from it. And that was
what the instruction asked. From the words of the call in the entry, as to this
line, the creek from the forks to the mouth must have been intended, as the line
designated could only be parallel to that part of the creek.

17

The third line called for in the entry was to run from the termination of the line
parallel to Mayfield creek, and 'parallel with the first line, so as to strike
Mayfield creek to include the quantity.' As this line strikes the creek at the
mouth, and runs on the bank of the Mississippi, it cannot be varied to include in
the survey the thousand acres called for in the entry. There is a deficiency of
one hundred and acres, which covers the land in controversy. And the question
is, whether the second lines called for in the entry, to run parallel with Mayfield
creek, can be disregarded, and extended so as to include the lands of the
defendants and the quantity called for in the entry.

18

In my opinion, this can no more be done than the beginning called for in the
entry can be changed, or the first line of the survey. The third line up the
Mississippi was, by the entry, 'to strike Mayfield creek so as to include the
quantity.'

19

It is admitted tht Mayfield creek, with its meanders, forms the closing line of
the survey. I know of no principle in the land law of Kentucky which
authorizes a court to disregard the specific calls of an entry, so as to include the
quantity designated. The locator was, no doubt, deceived as to the ground
covered by his entry. The line called to be run so as to include the thousand
acres being bounded by the Mississippi, could not be varied so as to answer the
calls of the entry for quantity. This was the misfortune of the locator which is
chargeable only to himself. It is clear that he cannot disregard the calls of the

entry, on any other line, so as to include the quantity.

20

The injustice of such a construction to the defendants, seems to me to be clear.

Finding the claim of Croghan's entry designating in plain terms its boundaries,
and knowing that by the law he was limited to the calls of his entry, his survey
not having been made, they purchased the adjacent residuum. And I have no
doubt that, by the well established principles of the land law in Kentucky, their
title is good; and, therefore, the instruction prayed for should be given.

21

In Rays v. Daniels et al., 2 B. Monr. (Ky.), 222, the court say in reference to
this district of country, where a patent has issued, the proof of a variance in the
survey from the entry, so as to make the patent void, for the land not included
in the entry, devolves on the adversary claimant. But they do not say, in that or
in any other case, that where the locator is limited strictly to the calls of his
entry, by a subsequent entry, or, as in the present case, by an express statute,
that the call for quantity controls the specific calls of the entry. There is no
principle better settled in the land law, than that the calls in a survey and patent
are not affected by quantity. If no private and paramount right be interfered
with, whether the survey and patent contain more or less than the quantity
called for, it is equally valid. An entry cannot call for a greater number of acres
than is authorized by the warrant on which it is made; but, where the
boundaries called for are specific, and the locator is limited strictly to the
boundaries of his entry, in making his survey, he can no more disregard them
than he can disregard the boundaries called for in his patent.

22

Palpable mistakes in the entry, such as a call for east instead of west, which is
apparent by other calls in the entry, may be corrected. But where there is no
mistake or uncertainty in the calls, to vary them is to make a new entry. This, I
conceive, no court has power to do. An entry, like every other instrument of
writing, must be construed by the words used. And these words can never be
extended, by construction, so as to infringe upon subsequent and bona fide
entries.