BODLEY V. TAYLOR, 9 U. S. 191 (1809)

9 U. S. 191

U.S. Supreme Court

Bodley v. Taylor, 9 U.S. 5 Cranch 191 191 (1809)

Bodley v. Taylor

9 U.S. (5 Cranch) 191


In Kentucky, it is a good ground of equitable jurisdiction that the defendant has obtained a prior patent for land to which the complainant had the better right under the statute respecting lands and in exercising that jurisdiction, the court will decide in conformity with the settled principles of a court of chancery.

Entries of land in Kentucky must have that reasonable certainty which would enable a subsequent locator, by the exercise of a due degree of judgment and diligence, to locate his own lands on the adjacent residuum. If the entry be placed on a road at a certain distance from a given point by which the road passes, the distance is to be computed by the meanders of the road, and not by a straight line.

If the entry be of a settlement and preemption to a tract of land lying on the east side of a road, the four hundred acres allowed for the settlement right must be surveyed entirely on the east side of the road and in the form of a square.

The call for the settlement right is sufficiently certain, but the call for the preemption right is too vague, and must be rejected.

A defendant in equity, who has obtained a patent for land not included in his entry, but covered by the complainants' entry, will be decreed to convey it to the complainants, but the complainants will not be required to convey to the defendant the land which they have obtained a patent for, which was covered by the defendant's entry, but which, by mistake, he omitted to survey.

Thomas Bodley, James Hughes, Robert Poague and Robert Campbell citizens of Kentucky, brought their bill in chancery against John Taylor, a citizen of Virginia, in the state court for the District of Washington, from whence it was afterwards, by consent, removed into the federal court for the District of Kentucky.

The bill states that on 17 October, 1783, Henry Crutcher and John Tibbs made the following entry with the county surveyor, viz.,

"Henry Crutcher and John Tibbs enters ten thousand acres of land on a Treasury warrant No. 18,747. as tenants in common; beginning at a large black ash and small buckeye marked thus (I.T) on the side of a buffalo road leading from the lower blue licks a northeast course, and about seven miles northeast by east from the said blue licks, a corner of an entry of twenty thousand acres made in the name of John Tibbs, John Clarke, John Sharpe, David Blanchard and Alexander McClain, running thence with the said Tibbs & Co.'s line due east sixteen

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hundred poles, thence south one thousand poles, thence west sixteen hundred poles, thence north one thousand poles to the beginning for quantity."

That the same having been surveyed, Crutcher assigned his half to Robert Rutherford, to whom and Willoughby Tibbs (the heir of John Tibbs), a patent was afterwards granted. Tibbs sold his right to Peyton, who sold a moiety thereof to Magill. Rutherford, Peyton, and Magill sold and conveyed the whole for a valuable consideration to the plaintiffs by deed dated February 15, 1799.

That the defendant Taylor having, on 22 May, 1780, made the following entry with the county surveyor, viz.,

"John Taylor enters three thousand acres of land upon a Treasury warrant adjoining John Walden on the north side of Johnson's Fork of licking, on the east and southeast sides, running up and down said creek, and north for quantity, to include an improvement made by Jacob Drennon and Simon Butler,"

has caused the same to be surveyed expressly contrary to location, and so as to interfere with your orator's claim aforesaid, and having obtained a patent older than that obtained by the said Rutherford and Tibbs, notwithstanding he knows his claim is surveyed contrary to location, and although requested, he refuses to convey to the plaintiffs. The prayer of the bill was that the defendant should convey to the plaintiffs so much of the land included in the defendant's patent as interfered with the plaintiffs' patent, and for general relief.

The defendant by his answer denied the jurisdiction of the court as a court of equity because the plaintiffs stated in their bill no equitable ground of relief. He avers his ignorance of the plaintiffs' title and that he did not know until within a few days then past the mode in which his own location or survey was made. That he had employed one Ambrose Walden to cause them to be located. He denies all fraud in making his survey. He avers that he was a bona fide purchaser for a full and clubjuris

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valuable consideration, prior to the title claimed by the plaintiffs. That no caveat was entered against his survey. That he regularly obtained his patent. That a considerable part of his land has been cleared and settled. That 20 years have elapsed since the entry. That the landmarks and geographical objects which were at that time visible, have been changed, altered, or destroyed by time.

He contends that if he has surveyed and obtained a grant for lands not described in his entry, and which he had no right to survey, he ought not to be compelled to convey them to the plaintiffs unless they will convey to him what he had a right to survey, and which they have surveyed, and for which they have obtained a patent. That the plaintiffs' entries cover almost all the lands which the defendant could have surveyed under his entry. That by the plaintiffs' delay the defendant has lost the power to locate his warrants elsewhere, if they are improperly located, which he denies.

He states that his entry was dependent on John Walden's, which depended upon Ambrose Walden's, which depended upon Jacob Johnson's. That Jacob Johnson's was first surveyed by the surveyor who surveyed the entries of the Waldens, and of the defendant. That although Jacob Johnson's survey was afterwards suppressed, yet that did not alter the actual location of the two Waldens and of the defendant. That his survey is correctly made according to the laws of Virginia when it was made, and while Kentucky was part of Virginia, and that by the same laws, and the compact between Virginia and Kentucky, at the time of separation, his prior patent, founded upon a prior equity, and obtained without fraud, cannot be vacated.

A survey and connected plat was made under an order of the court, and according to the directions of each party.

A jury came, according to the custom of Kentucky clubjuris

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in chancery suits, and being sworn to inquire of such facts as should be submitted to them, found the following facts, viz. That the place designated on the connected plat by the letter A. is the place called for as the beginning corner of John Tibbs & Co.'s entry of 20,000 acres, dated July 31, 1783, on the buffalo road leading from the lower blue licks to Limestone, which corner is also the beginning of an entry of 10,000 acres made 17 October, 1783, in the names of Henry Crutcher and John Tibbs, under which the complainants claim, copies of which entries are annexed to their verdict.

The following facts were agreed by the parties, viz.:

2. That the entry of 20,000 acres in the name of John Tibbs and others, and a survey made thereon, for 16,000 acres on 8 June, 1796, were assigned to the complainant Bodley, who obtained a patent therefor in his own name dated 21 April, 1798, and afterwards conveyed one undivided moiety thereof to the complainant Hughes, by deed duly recorded.

3. That the entry of 10,000 acres was made on 17 October, 1783, in the name of Henry Crutcher and John Tibbs, surveyed 14 March, 1784, registered 31 December, 1784, and patented in the names of Robert Rutherford, assignee of Henry Crutcher, and Willoughby Tibbs, heir at law of John Tibbs, deceased, 26 August, 1790, was purchased by Bodley 26 September, 1798, and conveyed to all the complainants jointly by deed duly recorded, dated 15 February, 1799. That the defendant's survey of 3,000 acres was made on 1 September, 1785, registered 1 November, 1785, and a patent obtained therefor dated 21 November, 1786.

4. That the grants issued by the register of the Virginia land office do not bear regular dates agreeably to the times the surveys were returned, but in clubjuris

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many instances the elder patent has issued on surveys returned several months after surveys on interfering claims were registered.

5. That the surveys of Jacob Johnson's settlement and preemption, as stated to have been surveyed in the defendant's first fact (hereafter stated), were made by the direction of Simon Kenton, his agent, who was also locator of the claims which call to adjoin the said Johnson's surveys, and were never admitted to record.

6. That Ambrose Walden's survey was made on 29 November, 1785, John Walden's the 27 December, 1785, and Jacob Johnson's settlement and preemption, as represented on the connected plat by lines thus, (000), was made on 9 April, 1789, registered and patents issued thereon to John Reed and Arthur Fox, assignee of Johnson dated 20 February, 1793.

7. That more than one entry and survey has been made on almost all the good land in the State of Kentucky.

8. That the several claims, watercourses, improvements, objects, and distances laid down on the connected plat, reported by the surveyor, are truly laid down and reported.

Facts for the defendant.

1. That the settlement and preemption of Peter Johnson heir at law of Jacob Johnson after being entered with the surveyor, were actually run out and surveyed as designated on the connected plat by the letters and figures M.N. 2 & 3, that the said surveys were made by a surveyor legally qualified to make the same, prior to the dates of the surveys made for Ambrose Walden, John Walden, and the defendant.

2. That the land surveyed for the said Peter clubjuris

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Johnson upon the said right of preemption, there are now 300 acres of cleared land, upon the said survey of Ambrose Walden 200 acres, upon John Walden's 400, and upon the defendant's 300 acres of cleared land.

3. That on 22 May, 1780, the land on which the entries of Johnson Ambrose Walden, John Walden and the defendant, were made, was uncultivated, and the country for fifty or sixty miles on all sides without an inhabitant, except Indians, by whom it was much infested, and only occasionally visited by hunters and land jobbers.

4. That on 22 May, 1780, and prior thereto, there were many cabins, marked trees, hunting camps and improvements then plain and notorious on Johnson's Fork, and the other branches of licking, of which there remain now no traces, and which are now wholly incapable of proof as to what was their exact position.

5. That since that time, a great change has taken place in the appearance of the country generally round and at the place where the defendant's entry lies. That the country is now thickly settled and in high cultivation. That great changes have taken place in the names of streams, roads, and other objects, and that few of those who frequented that part of this country in the year 1780 are now alive.

6. That the complainants, Bodley and Hughes, assignees of Tibbs & Co. are the proprietors of the 16,000 adjoining the 10,000 acres in the bill mentioned.

7. That the cabin represented on the connected plat as Jacob Drennon's is the improvement called for in his certificate for a preemption, which was claimed for him before the commissioners by Simon Kenton, who also located the complainants' claim of 3,000 acres. clubjuris

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8. That the place designated on the plat on the south side of Johnson's Fork as a cabin represents a cabin built prior to the first of May, 1780, by Simon Kenton, otherwise called Simon Butler and Jacob Drennon.

It was also agreed between the parties that on and before 21 February, 1780, the lower blue licks were generally and notoriously known by the appellations "the blue licks" and "the lower blue licks," and that the road on which the complainants claim their beginning was then generally and notoriously known by the name of the upper road.

That the three buffalo roads laid down upon the connected plat in February, 1780, and before led from the lower blue licks as represented.

That upon any reasonable plan of surveying the defendant's entry of 3,000 acres, it would be covered by the younger entries of 10,000, and 16,000 acres, the property of the plaintiffs, and would include land of equal or better quality than that which it now covers.

That the land in dispute is of more value than $2,000.

The following are the entries made by the parties respectively, viz.,

"January 7, 1780"

"Peter Johnson heir at law of Jacob Johnson deceased, this day claimed a settlement and preemption to a tract of land in the District of Kentucky lying on the east side of the buffalo road leading from the blue licks to Limestone, nine miles from the lick on the upper road, by the said decedent's raising a crop of corn in the year 1776; satisfactory proof being made to the court, they are of opinion that the said Peter Johnson &c. has a

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right to a settlement of four hundred acres of land, to include the above locations, and the preemption of one thousand acres adjoining, and that a certificate issue accordingly."

"February 21, 1780"

"Peter Johnson heir, &c., enters 400 acres in Kentucky by virtue of a certificate, &c., lying on the east side of the buffalo road leading from the blue lick to Limestone, nine miles from the lick on the upper road."

"May 22, 1780"

"Ambrose Walden enters 1,333 acres upon a Treasury warrant on the east side of Jacob Johnson's settlement and preemption on the waters of Johnson's Fork a branch of licking, to include two cabins on the north side of said fork, built by Simon Butler, and to run eastwardly for quantity."

"May 22, 1780"

"John Walden enters 1,666 2-3 acres upon a Treasury warrant, joining the above entry on the south and southeast, to include three cabins built by Simon Kenton, running east and southeast for quantity."

"May 22, 1780"

"John Taylor enters 3,000 acres upon a Treasury warrant joining John Walden on the north side of Johnson's Fork of licking, on the east and southeast side running up and down the said creek and north for quantity, to include an improvement made by Jacob Drennon and Simon Butler."

The court below then proceeded to pass the following interlocutory decree:

"It is decreed and ordered that Duvall Payne of

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Mason County do go on the land in controversy and survey the claim of the complainants, agreeable to their entries. Then survey the settlement entry of Peter Johnson heir of Jacob, to begin at a point nine miles below the lower blue licks on the buffalo road as it meanders leading to the mouth of Limestone, thence east so far that a line north two hundred and fifty-three poles will give 400 acres on the east side of the road. That he then run out the preemption of Johnson in a square to the cardinal points, to lay around the settlement, and give an equal proportion of land on the south and east which is to direct the lines on the north and west."

"That he survey Ambrose Walden's entry on the east of Johnson's preemption, then John Walden's in equal proportions on the south and east of Ambrose, and the defendant's on the south and east of John Walden, in equal proportion."

"That he then ascertain the interference between the claims of the complainants and defendant, which lie without the limits of the defendant's entry as it is now directed to be surveyed, and within the lines of the complainants' entry, mark the lines and make corners to this interference when ascertained, and make report to the next court."

After this interlocutory decree, and before the surveyor made his report, the following facts were agreed and admitted by the parties:

1. "That there is at the blue licks a salt spring on the south side of licking, which is south 36 deg. west 82 poles from another salt spring on the north side of licking."

2. That there are at the blue licks about 500 acres of land trodden and licked away by the resort of buffaloes and other wild beasts.

3. That the connected plat in this cause, and the survey executed in pursuance of the interlocutory clubjuris

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decree, are made out by superficial, that is surface mensuration, and the distance from the blue licks to the respective beginnings of the parties' entries, ascertained in the same way.

Afterwards, the surveyor made his report, with a plat stating that he had made the survey according to the decree, and found

"that part of the defendant's survey which is included within his survey when laid down agreeable to the decree, and is also within the complainants' survey, to be 1,076 acres, . . . and that part of the defendant's survey which is included in the complainants' entry when laid down agreeable to decree, and will not be in the defendant's survey when made agreeable to the decree, is in two tracts, one containing 2,034 acres and 24 poles, . . . the other containing 182 1-2 acres."

Whereupon the court decreed and ordered that the defendant should, before 1 December then next, convey to the complainants by deed, with warranty against himself and those claiming under him, the two tracts not within his survey as laid down by the order of the court, and which were within the complainants' survey, amounting to 2,216 1/2 acres; and should pay the costs of suit.

Each party brought his writ of error. clubjuris

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