Blunt's Lessee v. Smith. 7 W.

North Carolina, which have been construed in Tennessee to permit and require it. But the plaintiffs contend that this construc

tion has been limited to the comparison of the *dates of the [* 274] entries, and admits of no inquiry into their legal effect as they stand in relation to each other.

If the question were to depend merely on its reason, it would be difficult to support the opinion that a court authorized to compare entries with each other, should not, in the exercise of this power, be permitted to examine their whole legal operation and relative effect. If it were to depend upon a construction now for the first time to be given to the acts of North Carolina, we should find great difficulty in maintaining that they allow the entries to be compared so far as respects dates, but no further. The act of November, 1786, ch. 20, in its preamble, recites that " Whereas it is the intent and meaning of the said act,” (the act for opening the land-office,) " and of the act hereby revived and put in force, that the first enterers of the vacant and unappropriated lands, if specially located, therein described, shall have preference of all others," &c. The 1st section then enacts: "That every first enterer of any tract of land specially located, lying in the western parts of this State," &c., shall have a further time for making his surveys, and that grants upon lands previously entered by any other person shall be void.

The same act allows a survey to be made on removed warrants, in cases where the warrants were originally located on lands which had been previously entered "as the law directs," by some other person, "provided such lands were at the time of such survey actually va cant, and that such survey on removed warrants shall not affect or injure the right of any lands entered, and specially [*275] located, in the office aforesaid previous to such survey.

The act of November, 1787, ch. 23, directs all surveyors to survey lands according to their priority of entry, and that every grant obtained on a subsequent entry, contrary to the provisions of that act, shall be void.

The original act had prescribed the manner of making entries, and those made in pursuance of law are considered special.

Between special entries the first is undoubtedly to be preferred; but if one entry be special and the other vague, as if one should describe the land intended to be acquired in conformity with the act, and the other should totally omit to give a description which might designate the place, should enter 5,000 acres of land, lying in the county of A, without naming any place in the county to which it might be fixed, could it be contended that, on any fair construction of the acts, this entry would prevail against one which was special,

Blunt's Lessee v. Smith. 7 W.

but was subsequently made? We think it could not. The acts of North Carolina appear to us to have been intended to preserve the priority of legal entries, not of those made contrary to law.

We do not think that the establish a contrary principle. Several dicta are to be found in the cases, stating the rule to be that courts will go beyond the grant only to support a prior entry, but these dicta were applied to the exclusion

decisions of the courts of Tennessee

of extrinsic matter, not to the exclusion of considerations [276] belonging to the entries themselves. The title to lands

surveyed on removed warrants has never been carried back to the entry; and, on the same principle, the title to lands surveyed off the entry can have no date anterior to the patent, so far as the survey does not conform to the entry. 1 Tenn. Rep. 172, 351, 306, 413. The effects of entries, then, as well as their dates, is considered by the courts of Tennessee.

It has also been contended that this principle ought not to be applied to military grants. The acts of North Carolina, which have been construed to justify a court of law in considering the entry as the commencement of title, are not, it is agreed, applicable to military warrants. But the act of 1786, c. 20, on which this construction is supposed to be founded, declares it to have been the intention of the act for opening the land-office, that the first enterers "shall have preference to all others in surveying and obtaining grants for the same." We think the act which prescribes the mode of obtaining military grants manifests this intention as unequivocally as those which are referred to in the act of 1786, c. 20. It is true, as has been stated in argument by the plaintiff's counsel, that the 3d section of the act" for the relief of the officers and soldiers of the continental line, and for other purposes," directs that where two or more persons wish or claim to have his or their warrant located on the same piece of land, the parties contending shall cast lots for the choice. But this section obviously provides for applications made at the same time. The 5th

section directs that "where a warrant shall be hereafter lo[277] cated, without any person making objections to such loca

tion, that such location shall be good and valid, notwithstanding the claim that may be afterwards set up by any other person." This section, we think, manifests a clear intention to give priority of right to the prior entry; and we are not surprised that, under this act, the courts of Tennessee should comprehend military titles also in that rule which authorizes courts of law to take into view the entries of the parties. At any rate, such is the settled course of the courts of the State, and those of the United States ought to conform to it. We think, then, that the circuit court committed no error in inquir

Blunt's Lessee v. Smith. 7 W.

ing into the rights of the parties to the land in controversy, under their respective entries. It is next to be considered whether, in making this inquiry, that court has decided erroneously.

The entry, as well as the patent of the plaintiff, being the oldest, it must prevail unless some circumstance has occurred to defeat the right given by this priority.

The defendants rely upon the survey made by Pollock, as confining the entry of Sumner to that survey.

Of the existence of this survey there appears to have been no doubt, and none seems to have been entertained at the trial. The plaintiff objected to receiving the copy of the plat and certificate in evidence; but when that objection was overruled, he contested the survey no further. His object, then, was to show that the

second line was never run. The judge charged the jury [* 278 ] that the plat and certificate made by Pollock, if he marked

no more of the corners and lines of Sumner's tract but the southern boundary, and southeast and southwest corner, would show, by calculation, where the northern boundary of his tract should be.

Nothing can be more apparent than the correctness of this charge. The law directs that "every tract surveyed for officers or soldiers shall be run out at the four cardinal points of the compass, either in a square or in an oblong." Consequently, when one line of a survey is given, the remaining three lines are found by a calculation which cannot vary. General Sumner's entry was for 12,000 acres of land. A line from west to east, constituting the southern boundary, was run, and measured 1,292 poles. Corner trees at each extremity were marked. From the end of this first line the survey calls for a line due north, 1,486 poles. Had this line been actually run and marked, the tract would have been bounded by the lines actually run, and the corner trees actually marked. But the line not having been run, the tract was bounded by the course and distance called for. Had there been no survey, had Sumner's entry been for 12,000 acres of land, to begin where the survey began, and to run east 1,292 poles, and from the ends of that line north for quantity, it must have been bounded in the same manner, because a rectangular oblong figure, to contain 12,000 acres, one of which is 1,272 poles, must have for its other sides lines of 1,486 poles. Of course, the judge was correct. in saying that if the southern boundary was given, the [279] northern boundary was to be found by computation.

Was he equally correct in adding, that Gee's land might be located on the north of Sumner's northern line when thus found?

We think he was.

Gee's entry called to lie, "adjoining the northern boundary of

Blunt's Lessee v. Smith. 7 W.

B. General Sumner, running west along his line for complement." Sumner's northern line was, consequently, Gee's southern line.

If, then, Sumner's grant had been issued according to Pollock's survey, no interference between him and Gee could have taken place. But a plat and certificate of survey was afterwards made out by Malloy, who was also a deputy surveyor, which extended the lines constituting the eastern and western boundary of Sumner's land, to 1,737 poles; and upon this plat and certificate his patent was issued. We must, therefore, inquire whether Pollock's survey was legally made; and, if it was, whether it could be afterwards changed, so as to affect a person making an entry in the intermediate time between his first and second survey.

The laws of North Carolina make it the duty of surveyors to survey entries in the order in which they are made, and do not require the presence or direction of the owners of the land. Pollock was a deputy surveyor authorized to make this survey. Consequently, it was regularly made, and had all the consequences of a legal survey.

[ * 280 ] Admitting the alteration made by Malloy to be * perfectly justifiable, Gee's entry was prior to that alteration; and the question is, whether such alteration can affect an appropriation previously made?

Upon the principles of reason and common justice, we could feel no difficulty on this point. But we are relieved from considering it by the decisions which have already taken place in Tennessee. In Blakemore v. Chambles, 1 Tenn. Rep. 3, it was expressly determined, that the validity of surveys " has no dependence on the will or direc tion of claimants," and that though the mistakes of surveyors may be corrected," they cannot be so corrected as to injure a subsequent adjoining enterer."

Gee's entry, then, made after Pollock's survey, will, if a valid entry, hold the lands against any subsequent survey made for Sumner. But as Sumner's is the eldest grant, the validity of Gee's entry must be examined.

It calls to adjoin Sumner's northern boundary, and to run west along his line for complement.

The laws of North Carolina direct, that an entry shall express "the nearest watercourses, and remarkable places, and such watercourses, lakes, and ponds, as may be therein, the natural boundaries and lines of any other person or persons, if any, which divide it from other

lands."

This law cannot be construed, and never has been construed, to require that watercourses, or remarkable places which are remote,

Blunt's Lessee v. Smith. 7 W.

should be expressed in the entry. It requires the expression of those only which are contiguous, and which may assist in showing the land intended to be acquired. If there be no con- [* 281 ] siderable watercourses, lakes, or ponds within it, the entry cannot express them. The reference to the adjoining land, when we take into view that the law directs entries to be surveyed according to their dates, would always be sufficient to make the entry special, if the line called for could be found. In Smith et al. v. Craig's Lessee, 2 Tenn. Rep. 296, the court said: "Previously to the year 1786, a vague entry was well understood to be one that contained no such specialty as that a majority of those acquainted in its neighborhood, at its date, could, by reasonable industry, find it; a special entry was considered the reverse. How natural is it, then, for us to suppose that the legislature designed, in the use of this expression, in the act of 1786, to convey such ideas as had by usage and common consent been appropriated to it.”

The books are full of cases containing similar expressions. It is impossible to look at all into the subject, without being satisfied that in the State of Tennessee, such an entry as that of Gee's would be deemed special, if Sumner's northern boundary could be found.

There could be no difficulty in finding it, since his land had been surveyed when this entry was made.

But the great objection on which the plaintiffs most rely, is, that to constitute a special entry in the State of Tennessee, the objects called for must be notorious as well as certain. The entry must be such as to give general information of the precise land it appropriates. Notoriety, as well as identity, are essential, [* 282 ] it is said, to specialty, and a call for Sumner's line is not good, unless Sumner's survey was notorious.

If this proposition be correct, if notoriety as well as identity be essential to the validity of an entry in Tennessee as it is in Kentucky, then Gee's entry cannot be sustained. But the law of Tennessee is, in this respect, entirely different from that of Kentucky. The act of Virginia, which is the land law of Kentucky, requires, that entries shall be so special and certain that any subsequent locater may know how to appropriate the adjacent residuum. The land law of North Carolina, which is the law of Tennessee, contains no such provision. The lawyers of Kentucky have made some attempts to transplant into Tennessee the principles which had grown up in Kentucky; but their attempts were unsuccessful. The books are full of cases in which it is expressly decided that notoriety is not essential to the validity of an entry. In the case of Philip's Lessee v. Robertson, 2 Tenn. Rep. 399, the whole subject is reviewed. Judge