FINLEY

v.

WILLIAMS AND OTHERS

Marshall, Ch. J.

delivered .the opinion of the Court as follows:

This cause depends on the lalul law of Virginia, whicb is .also the land law of Kentucky, that state having formed a part of Virginia when the act was passed in which the titles of both Plaintiff and Delendant originated. Both parties claim the land in controversy by virtue of improvements made previous to •the first day of'January, 1778, which improvements were recognized by the act generally termed “ the previous title law,” and gave the persons malting them pre-emption of one thousand acres of land, to include the improvement, on paving therefor the price at whidh the state sold its vacant lands, “ provided they respec- “ tively demand am! prove their right to such pre-emp- “ tión before the commissioners for the county to be ap- « pointed by virtue of this act, within .eight months.” *

In the year 1781 an act passed which, after reciting that, by the discontinuance of the commissioners in the district of Kentucky, many good people of the commonwealth were prevented from pioving their rights of settlement and pre-emption, in due time, owing to their being engaged in the public service of this country, on-acts that the county Courts in which such laiids may lie bo empowered and required to hear and determine such disputes, and that the register of the land office be empowered and directed to grant titles on the deter-initiations of such Courts, in the samé manner as if the commissioners liad determined the same.

It appears that,.in the year 1773, John Finley, the Plaintiff in the cause, marked and improved the land in controversy. He entered into the continental in the year 1776, and continued therein throughout the war. His claim was not made-before the commissioners, but was made to the Court of the county in which the hinds-lie, by which Court his claim was allowed, and the following certificate was granted: “'At a Court «held for the county of Fayette, March 12th, 1782, «‘application and satisfactory ‘ proof being made, this « Court doth-certify that John Finley is entitled to the « pre-emption of 1000 acres of land, situate -the on main. “ branch of Licking Creek, to include an improvement “made iti the year 1773. by said Finl-y, and tó be “ bounded by a survey made, at the time; for him, which “ includes the Upper Blue Lick, by virtue of such mark“ingout and improving, and his being, in pu'vhc ser- « vice when the commissioners sat in the district, and “ thereby prevented applying for the saíne.”

A pre-emption warrant was obtained, and, on the 14th day.of November, m the year 1783, an entry was made with the proper surveyor in the following words: « John Finley enters 1000 acres of land on a pre-empt£ tion warrant, No. 2526, on Licking, to include the « Upper Blue Lick, and bounded on three sides by the «line, bf an old survey made in the year 1773, begin«ñíng,” &c. Tñis entry was surveyed, and a patent issued thereon,

William Lynn, under whom the Defendants claim, made an ¡nfprovement on the same ground, in the year 1775, and laid his claim before the commissioners, who allowed the same, and granted, a certificate therefor, dated the 20th day of November, in the year 1770, in the following words: « William Lynn this day claitiv'd « a pre-emption of one thousand acres' of land at the “ state price, lying on the south side of Licking Creek, « known by the name of the Big,Bluc Lick, to. include « the said lick, lying in a short bent of the said creek, « by improving the same in the year 1775, &c;” On the 22d of June, 1780, Lynn, having obtained a preemption warrant, entered the same with, the proper surveyor, in these words: « William Lj nn, James Bar-«hour and John 'Williams’ enter 1000 acres _of land «upon a pre-emption warrant, beginning a quarter e this location in 1775, had not discovered the Low., flue'Licks, and therefore denominated the spring which th, in the words following, to wii :• •* William Lyi.n, James Barbour and “ John Williams enter L00Ó acres upon a pre-emption warrant, beginning “ one quarter of a mile below the Big Blue Li: k, on Licking, on the south side thereof, running.up both sides of the said creek, and east and south for <c quantity,” which being of elder date than that of the Complainants, the Defendants holding the elder grant for the lands in controversy, 1 shall therefore consider the validity of their entry first, and test thereby their right to the land in dispute, which, if it be defective and cannot be supported, must yield to the Complainant, whose entry, in that case, is deemed good and Va- * Ikl for so much as it can legally cover

The important call in the entry of the Deféndants is “ the Big Blue Lick on Licking, on the south side thereof.”

The validity of this entry rests on the following points: Was the lick, described in the connected plat filed in this-suit by me name of the Blue Lick, on the 22d day of June, T780, and prior to that time generally known and called by the name of “ the Big Blue Lick ?” Does ii lie on the south side of Licking? Is it a big lick ? If the lick was i ot notoriously known by the name of the “ Big Blue Lick” prior to June, 1780, is the identity thereof Sp described as to put a subsequent locator on his guard ?

By the testimony taken In this cause the lick in controversy was discovered by-the Complainant and hÍ8 fellow adventureis in the year 1773, and was by them called .the Upper Bin; L»*U in contra-distinction to ano her and . larger lick which hud then been discovered hy some'of the company lower down Licking,

In the yew 1775 another company of adventurers, consisting of five persons of whom William Lynn whs one, discovered the lick, and by them it was exiled the “ Big Blue Lick” and from the.entry made with the surveyor by Lynn, it was. so known to him,'aud.c»lled by that.name on the 22d day .of June, 1780. •

From -the year 1777 to the present day the .lick has been generally, and perhaps universally, with tho above exception by Lynn,, designated by the name of the Upper Blue Lick. The weight''of testimony preponderates, as to the name of the lick, in favor óf the Complainant. Therefore, as to the-notoriety of the licit, by the name of “the Big Blue Lick,” the entry of the Defendants is defective.

Although it often happens that notoriety of an object called for Id an entry cannot he. satisfactorily proved, yet (he identity thereof may be so * dcscribed , .that it .may be found by reasonable enqjiiry and searching therefor, and -when found, known by the description. In that case, identity is equal to notoriety.

I will now enquire how far the identity of the lick called for in the entry of the Defendants can he supported*

All the witnesses in the cause speak1 of the lick in question as being a blue Jick, and it is so admitted by the parties who, in their admission, represent the salt water issuing from the spring to be of a bluish color. There is no testimony which proves the existence of .any Blue Lick on Licking, except the Vppetf and Lower Blue Licks. The testimony establishes two" salt springs on the south side of Licking; tliat the one lowest down is less than the upper spring; that there is another salt spring on the north side of Licking, at the. jdace called the Lower Blue Lieks, which is larger than that on the south side of the stream; and that there is no salt spring on the north side of Licking opposite the upper lick. The witnesses also,' when speaking of the lower salt spings, describe them generally as one entire object, “the Lower Blue Lick,” or Licks; and William Brooks describes both the Upper and Lowei Blue Licks as big licks, and that the upper spring discharges most water. The Courts in this country have always endeavored to sustain an entry, if by reasonable construction it be possible For this purpose they will reject an absurd, or superfluous call: they will supply a word: they will consider a call not proved as expunged; and although there are more allegations than are proved, yet if enough is proved to render the entry sufficiently certain, the Court will support it.

These observations are made to show that the Courts will go great length? fo support defective entries in imperfect and unimportant calls, and are not app jeabie to the entry now under consideration, which, in itself, is considered as possessing suffieieni identity to put a subsequent locator upon enquiry, and when tound, to know the place by •'the description contained in tho entry. The Upper and Louver Blue Licks bad received appropriate names as early as the year 1777. The Lower Blue Licks, although there were at that place two salt springs, one on the north’and the other on the south side of Licking, had received an appropriate name conveying, the idea of unity. This was not thq situation of the Upper Blue Lick, which, ail hough it had also an appro* priate name by which it was“most generally known at the time the entry of the Defendants was made, yet it lies altogether on the south side of licking

The testimony taken in this cause supports every call in the entry of the Defendants. All the. witnesses concur that the place designated in the connected plat as a blue lick is entitled to that appellation Brooks says that both the licks, i. c. the Upper and Lower Blue Licks, are big licks; and m answer to a request to express his opinion which of the two was the largest, said he would recommend an examination; and the upper lick is on the south side of ^Licking. These facls'apply to the description given in-the Defendants entry, and will not apply to the Lower Bftte,Licks Therefore, as no entire blue lick is proved to exist on the south side of Licking, except that designated in the connected plat, the entry of the Defendants is sustained* and the Court -is of opinion that no doubt could exist in the mind of a subsequent locator, upon viewing the Upper and Lower Blue Licks, and comparing the situation ami other circumstances attending the Upper Blue Lick, with the entry, but thaJ it was the place described and would defeat any idea of ambiguity, if it bad occurred.

On examining tbe connected plat I find that the Defendants have corn .menced their survey on Licking, about one hundred poles below the lick , whereas, by the entry, they ought to have begun only eighty, that being the’ precise distance called for as the point of beginning of their survey • to rectify which a new survey was ordered, upon (he return of which,'tHe Defendant were decreed to convey to the Complainants so much of the land as was in the Defendants original purvey/ -¿ml was now left out by tbe new survey, as interfered with the Complainant's survey., and that *hs Complainant’s bill be dismissed as to all the residue.