Opinion
May 1801.
Although a survey might have been made differently, and the calls be complied with, yet that shall not prejudice the enterer, who has no control over the surveyor. [Acc. Carter v. Ward, 2 Tenn. 340, overruling Douglass v. Harrison, 1 Tenn. 172.]
Equity considers that as done, which ought to be done; and therefore, the first enterer is entitled to have his entry surveyed in the manner directed by law, notwithstanding part of the land may be covered by a grant founded on a later entry. [Acc. Barnet v. Russel, 2 Tenn. 19; and Philips v. Robertson, 2 Tenn. 404, citing this case.]
The surveyor cannot be admitted to explain his own act so as to contradict the record. [Acc. 1 Tenn. 74; 2 id. 1; 23 and 305.]
Because jurisdiction in a matter of equity is given by statute to the law courts, the remedy in equity is not taken away. [Acc. 1 Tenn. 427; 2 Tenn. 229; 1 Tenn. 478; 1 Hum. 145; 4 Sn. 440; 5 Sn. 488; 2 Head, 617; 3 Head, 359.]
LEWIS, for the defendant, contended that the entry of Bradley, under whom the plaintiff claims, was vague, inasmuch as it did not describe in what part of the land the spring should be included. If the entry were not void, it was clear that the spring ought to have been included in the centre of a square; this is the most rational construction of the entry so as to give all subsequent enterers a fair and equal chance. Make the spring the centre, Bradley could not interfere with the claim of M'Crory. Bradley regarded in his running the older entries and surveys of Buckhannan, Todd, and M'Murray, which continued from his beginning at A until he came to E, why did he disregard Moore's, and run 114 poles into that and through the whole length of his survey? A man is not bound to run in a square or an oblong not exceeding in length twice its breadth, if he be confined by older lines; but an enterer has his election whether he will be confined by older lines or not. If he chose to depart from this principle, and run into older claims, he is as much bound to run in a square or an oblong, as if an older claim did not exist in the neighborhood at all.
It has never been the practice of our courts or juries to construe entries by equity or presumption requiring surveys to be in a square when entries did not call for it. See Add. 216. Otherwise in Kentucky. See Hard. 10, 15, 367, 411, 497.
Clearly, then, when Bradley departed from the principle of adhering to older lines, when he ran into Moore's, he was at least bound to run in an oblong not exceeding in length twice the breadth. In this case he would not have interfered with the defendant's claim, the nearest part of which is 490 poles from the western boundary of Bradley's tract, and 324 poles east from Bradley's spring. The intention of an entry is to give notice to mankind where the enterer designs to appropriate his land, so that others may know how to enter. How could any man suppose that Bradley, entering as he did, "to include the spring," would run down to Stone's River, and take land 450 poles east of the spring. Such a construction of this entry must leave all subsequent entries in jeopardy. It is but fair that prior enterers should give those who come after an equal chance. Equality is justice, and justice is law. The fair construction of this entry would compel Bradley to place his spring in the centre of a square, at least he should not be permitted to run further than 452 poles, the duplicate proportion of the side of an oblong of 640 acres. Bradley has voluntarily assumed the line, E F, as his western boundary, running an oblong east from thence, would not come within 38 poles of the defendant's line. It was doubtful whether the survey, as actually made by. Bradley, included the land in dispute; the jury have found that it did, but that finding does not bar an investigation of the law arising upon the entries and surveys. If Bradley were not authorized under his entry to run so as to take the land in dispute, he cannot now obtain a decree for 38½ acres which is in dispute.
Every individual in the exercise of legal rights, must so demean himself as to give an equal opportunity for the exercise of similar rights in others.
If the plaintiff were permitted to prevail in the recovery of this land under this entry, no subsequent enterer could be safe so long as there was an older vague entry in the neighborhood. The latitude of running which the plaintiff contends for, under Bradley's entry, will lead to endless uncertainty and perplexity. For aught that could appear to subsequent enterers to the contrary, Bradley might have designed by his entry to run 450 poles, north, south, or west of the spring, as well as that distance east. Can it be possible, that the law could have designed to leave the rights of citizens in such a state of confusion and uncertainty as this?
OVERTON, for plaintiff, argued e contra, he relied upon the preference given by the laws, to older entries; the injunction on surveyors to survey older entries first; that the elder enterer should possess every advantage which he could have possessed, in case the surveyor had performed his duty, in making Bradley's survey before M'Crory's, which by law he was bound to do.
Hard. 12, 194, 568.
Bill in Equity. — The plaintiff claimed by a deed of conveyance from Bradley, whose claim is founded on the following entry of a pre-emption right: "No. 370, March 23, 1784, Edward Bradley enters a pre-emption of 640 acres of land, lying on the head of a branch that runs into Stone's River, about one mile above the Station, including the Cave spring on the north side of the trace marked E B," upon which a survey was made August 10, 1790, and a grant issued November 27, 1790, No. 348. The plaintiff claims the land, a view of which is exhibited in the annexed plat by the lines A B C D E F G H I. The defendants contended that the plaintiff's claim did not cover the land included within the lines H I J K, and if it did, that the plaintiff could not hold consistently with the principles of law, against the claim of the defendants.
The defendants claim, by virtue of a military warrant, No. 1984, entered in the name of Thomas M'Crory, assignee of Jonas Reaby, 640 acres of land, "lying on the west side of Stone's River on the upper side of the first big branch, above the old Station, running up the river and
west;" entered December 31, 1785, which was surveyed on the first day of April, 1786, and represented by the lines, J K L M, upon which a grant issued on the 10th of July, 1788. The defendant (M'Crory), sold that part of the land now in dispute, to the defendant, Gillaspie, with, other lands adjoining. The lines E N O H represent Wm. Moore's pre-emption.
The jury have found that the land in contest is included in the survey of Bradley; the only question is, whether Bradley, or those who claim under him, can hold the land under the entry. It appears that M'Crory not only surveyed, but that he got his grant before Bradley surveyed.
This, we believe, does not deprive Bradley of any advantage which the law gave him on account of his having the oldest entry. The surveyor is directed, by law, to survey the oldest entry first, and if he does actually survey a younger entry before an older, it should not place the first enterer in a worse situation.
Bradley's survey was bounded by older claims — by Buckhannan's, Todd's, and M'Murray's. His running into Moore's made no difference to M'Crory; for it does not appear that he got his quantity, including the interference with Moore. Whatever distance the surveyor might think proper to run Bradley's claim to the west of the spring, did not injure M'Crory; he is therefore not competent to an objection on this account. The most proper point of view, in which to consider this question as it respects the objections of M'Crory, is whether Bradley could include this land, by running an oblong east from his spring, barely taking it in; he certainly might, for it is but 450 poles from the spring to the river. This is the most favorable point of view, in which it can be considered, for the claim of M'Crory. An oblong would have included it, and inasmuch as the part of Bradley's claim, which lies to the west of the spring, does not interfere with M'Crory, his claim can derive no validity from this source.
ORIGINAL NOTE. — The defendants produced John Buckhannan, the surveyor or both Bradley's and M'Crory's claims, to prove what he INTENDED in making Bradley's survey.
Sed Per Curiam. The survey is matter of record, which speaks for itself. It would be of dangerous consequence to admit the proof now offered. We cannot admit the surveyor to explain his own act, so as to contradict the record.
In this case it was contended on the part of the defendants, that agreeably to the decision at Jonesborough, some years ago, the bill ought to be dismissed, as the plaintiff had his remedy at law.
Sed Per Curiam. Before the passage of the Act of 1786, c. 20, the plaintiff had his remedy in equity, and it is not taken away by this act. He has an election to bring his suit at law or in equity.
The principle of this case does not accord with the decisions in Kentucky, as laid down in Hughes's and Hardin's Reports, but is conformable to the verdicts of juries acquiesced in by our courts, and is agreeable to the manner of running out lands by surveyors in this State, previous to the compact with North Carolina in 1803. This decision is also conformable to the practical construction put on the land laws by the citizens of North Carolina, as appears from the following certificate of Col. Christmas, the principal surveyor of the first district, who was appointed a surveyor in North Carolina immediately after the passage of the land law, of 1777, and acted as such, within the limits of what is now three counties in that State; he continued in the exercise of that office from the year 1778 till about the year 1793. His observations are, that "according to the usage of citizens of North Carolina, from the year 1777, under their entry laws, an entry calling to adjoin some notorious line, or for some notorious point to be included, was considered as special enough. That agreeable to the usage of surveyors in North Carolina, from the year 1777, they surveyed the oldest entries first, when they interfered with or lay contiguous to younger ones; that according to said usage, when they surveyed an entry having a special call, and not restrictive as to boundaries, and could not survey it in a square or oblong on account of older claims, they bounded their surveys on such older claims in any form to the cardinal points, taking care to embrace the quantity of land called for in the entry. It was also the common usage among surveyors in North Carolina, to survey the oldest entries first, to include the quantities called for in the entries by running into any contiguous lands which were not appropriated previously to the entries to be surveyed; and in making such surveys the square or oblong form was departed from when constrained to do so by older claims. In making surveys in North Carolina on younger entries, it was also the usage of surveyors, from the year 1777, to run out such younger entries, so as not to interfere with an older entry, or first survey, let the calls of the younger entries be what they might. It was also common for surveyors to call on the enterer to show the land entered, and permit him to point out such beginning as he desired, taking care however to comply with the specialties called for in the entry. WM. CHRISTMAS."
"I surveyed in several counties in the State of North Carolina, from the year 1794, until the year 1804, and in making surveys by virtue of entries, I was governed generally by the principles above stated. JOHN STROTHER."
As to the effect of usage and precedents in law, vide 16 Vin. Ab. tit. precedents; Jenk. Cent. 162, pl. 9; 1 Call. 210; Maryland Reports, 67, 86, 131, 212; 2 Mass. 477; and the opinion of Ch. J. Parker, in 1 P. Williams, 399, 452. The rule laid down by Edwards, Ch. J., in delivering the opinion of the Court of Appeals in Kentucky, appears to be the correct one, "that the principles of the statute law, and not the general principles of equity, must govern courts of equity in deciding on land claims. Decisions of courts of equity must have for their basis the meaning and spirit of the land laws." See Hardin, 472.
The defendant must convey to the plaintiff.
NOTE. — As early as 1798 our courts applied the equitable remedy in actions of ejectment, by permitting the party having the oldest entry to give it in evidence, and holding that he should stand in the same situation at law, as if his grant had issued on the day he made his entry. 1 Tenn. 201, 419, 427; Cooke, 27.
At first, this doctrine was sustained in argument, by supposing that the Acts of 1786, 20. and 1787, 23, 1, authorized the entry to be given in evidence in ejectment, 1 Tenn. 9. But it was soon observed that these acts are mostly declaratory of the meaning of the Acts of 1777, 1, and 1783, 2, which themselves import nothing less, than that the first enterer shall be the grantee, on the ground of his being from the date of the entry, a purchaser of the land by actual payment of the prescribed consideration into the State treasury through the medium of the entry taker. 1 Tenn. 413; Cooke, 27. See Meigs's Dig. § 1210. — ED.