[Holmes and others v. Trout and others.]

as the right under the decree is asserted against the defendants, who have held, adversely, twenty years or upwards.

It is true the complainants are non-residents, but so far as the land obtained by the decree against the heirs of Breckenridge is concerned the statute had begun to run before the decree; and that proceeding does not arrest it.

The survey of Voss was made for eight thousand five hundred acres on the 16th February, 1789, and the patent was issued to Short, as the assignee of Voss, on the 16th of March, 1790, for eight thousand five hundred acres. In running the lines of the survey, which purports to appropriate only eight thousand five hundred acres of the entry, they were made to include a large surplus of land, beyond the calls of the entry. But before this survey was executed several entries were made, under which a part of the defendants claim, and which are embraced in the survey. It It [215 becomes, therefore, necessary to determine between these conflicting rights.

The principle is well settled, that a junior entry shall limit the survey of a prior entry to its calls. This rule is reasonable and just. Until an entry be surveyed, a subsequent locator must be governed by its calls; and this is the reason why it is essential that every entry shall describe, with precision, the land designed to be appropriated by it. If the land adjoining to the entry should be covered by a subsequent location, it would be most unjust to sanction a survey of the prior entry beyond its calls, and so as to include a part of the junior entry.

This principle is not contested by the complainants, but they deny its application to the case under consideration. They insist that the designation of the number of acres in the survey, below the amount called for in the entry, was a mistake of the surveyor. That it was the intention of Voss to survey his entire entry, as is evidenced by the number of acres actually included in the survey. And the well settled rule is relied on, that surplus land will not vitiate a survey.

The intention of the surveyor can only be known by his official acts, and a resort to these in the present case, will show that he intended only to survey eight thousand five hundred acres, of the ten thousand acres entry. It is true, the lines include a very large surplus; but this, according to the rule stated, does not render the survey void.

The locator may survey his entry into one or more surveys, or he may, at pleasure, withdraw a part of his entry. Where a part of a warrant is withdrawn, the rules of the land office require a memorandum on the margin of the record of the original entry, showing what part of it is withdrawn. It does not appear that any record of a withdrawal of a part of Voss' entry was made; and from this fact it is argued, that none was intended to be withdrawn.

The question is not exclusively one of intention, or whether any part of this warrant has been withdrawn. If a withdrawal appeared upon the record, it would be conclusive; but must not the right to

[Holmes and others v. Trout and others.]

withdraw fifteen hundred acres of the entry be equally as conclusive *216] as if it had been done. And is not this right incontrovertibly established by the fact, that only eight thousand five hundred acres of the original entry have been surveyed and patented.

If a mistake was made by the surveyor, why was it not corrected before the emanation of the grant, or at some subsequent period? This might have been done at any time by the holder of the claim.

Whatever may be the facts in regard to a mistake of the surveyor, this court cannot correct it; nor does it prevent the complainants from withdrawing one thousand five hundred acres of the entry, and making a location elsewhere; or perhaps, from still executing the survey for this quantity under the original entry. If in the latter case the right would be barred by the statute of limitations; or in the former it would be ineffectual from the lapse of time or the want of vacant land; the loss is chargeable to the negligence of the complainants, and those under whom they claim.

From this construction of the survey it follows, that the right asserted under it must be limited by the valid entries under which a part of the defendants claim, to the calls of the entry which shall cover the quantity of acres that the surveyor purported to survey. The same construction must be given to the survey as if it had been made on an entry for eight thousand five hundred acres, which, by subsequent locations, was limited strictly to its calls.

As the line of Allen is called for as one of the boundaries of Voss' entry, it is necessary to give a construction to Allen's entry, and ascertain where this line should be established. Allen's entry was not surveyed at the time Voss made his location. This entry calls to "begin at the north-west corner of Patton's eight thousand four hundred acres survey, and to run with his line south two hundred and fifty poles, thence down the creek on both sides for quantity; to be laid off in one or more surveys."

The circuit court direeted the survey of Allen's entry to be so made, from the base line called for, as that the lines shall include Barebone creek, and be parallel to its several courses, &c.

It appears from the survey executed in pursuance of this *217] construction of Allen's entry, that near where the creek falls into the Ohio river, there is a bend in it which renders it impracticable to include the mouth of the creek in the survey; but, with the exception of this bend, the creek is included. As it is impracticable to include the mouth of this creek in the survey, it is insisted by the complainants' counsel, that this survey of the entry is incorrectly made; and that the court should have directed it to be made by running at right angles from the base line for quantity.

In support of this position several authorities have been cited. In the case of Preble v. Vanhoover, 2 Bibb, 120, the court says, "that the call to run eastwardly is an indefinite expression, signifying on which side of the base line the land is to lie; and that a rectangular figure is not to be departed from, unless the calls of the entry are incompatible with that figure."

[Holmes and others v. Trout and others.]

But in the same case the entry called to include an improvement, and the court decided that the length of the given base and the call to include the improvement being incompatible, the former must yield, so far as necessary, to comply with the latter. In Hardin, 208, the construction of an entry is given by the court of appeals of Kentucky. They say that in the construction of entries it is difficult to lay down general rules that will not necessarily admit of many exceptions. Each case must frequently depend upon its own peculiar circumstances; but it is evident that every entry itself must be resorted to for discovering the locator's intention, in construing which, the whole entry, like other writings, should be taken together. "But if, from a fair and reasonable exposition of the entry, a call appears to have been made through mistake and is repugnant to the locator's intention, it ought to be rejected, the court say, as surplusage; and not suffered to vitiate the whole entry. Therefore, they say, the object called for should not be so repugnant as to be incapable of misleading a subsequent inquirer with ordinary caution." "It should be practicable to comply with the call; and, in general, it should be a tangible object, either natural or artificial, not a mere ideal one." The court also say, that a certain line should be run south-west, "not only because they conceive the locator's intention sufficiently manifest, but because they esteem it a good rule that the

lines of every survey should be as nearly parallel to each [*218

other, and as nearly at right angles, as the calls of the entry will admit; and when not controlled by such calls as evidently show the locator's intention to be otherwise, the court will give its calls this construction, as being the most reasonable, and the least subject to exception."

These views contain the general principles which have been established in Kentucky, and by which entries in that state must be governed.

It will be observed, that in giving a construction to an entry the intention of the locator is to be chiefly regarded, the same as the intention of the parties in giving a construction to a contract. If a call be impracticable, it is rejected as surplusage, on the ground that it was made through mistake; but if a call be made for a natural or artificial object, it shall always control mere course and distance. Where there is no object called for to control a rectangular figure, that form shall be given to the survey.

These principles must now be applied to the call for the creek in Allen's entry.

It is objected that this creek is not called by any particular name, and the reason no doubt was, that, at the time Allen's entry was made, no name had been given to it. Nor was any name given to the creek on which Patton's entry was made. Subsequently to that entry it was called Patton's creek, from the fact of his entry having been made on its bank.

Barebone creek seems to be a stream of some magnitude; and it does not appear that there is any other creek which answers the call

[Holmes and others v. Trout and others.]

in Allen's entry. This creek is a natural object, and is crossed by the base line of the entry; and could any one doubt the intention of the locator, under such circumstances, to include the land on both sides of the creek by his call "to run down the creek on both sides westwardly, for quantity? It is true, the mouth of this creek is not included in the survey which was directed by the circuit court, but the mouth of the creek is not called for specifically; and it does not appear, but that if the exact quantity of land called for in the entry had been surveyed, that the creek would have passed through the whole length of the tract. The call is not to run to the Ohio *219] river, but " down the creek on both sides for quantity." It would be difficult to make a call more specific than this, or one which would be less likely to mislead any subsequent locator. the fact that the creek, by an unusual deviation from its general course, near its junction with the Ohio, passes out of the boundaries designated, calculated to mislead any one? Suppose it passed out of the limits of the survey five or ten poles before the lines closed; would this, by the principles laid down, require the call to be rejected? Could that fact lead any one into error? And unless such a deviation would require the court to reject the call, it cannot be rejected on the ground alleged. The creek, by the survey executed, runs through the tract about seven-eighths of the entire length of the line, and the extraordinary bend which carries it out of the survey, cannot vitiate the call or render it substantially repugnant.

The question which arises out of these facts is, whether this call shall not control the survey, so as substantially to conform to it. The call to run westwardly, having nothing else to control it, would, according to the established rule of construction, require the lines to be run at right angles from the base. But the court are clearly of opinion, that the call to run down the creek on both sides for quantity, must control the survey; and that the construction given to the entry by the circuit court was correct.

This line of Allen's entry being established, it forms the lower boundary of Voss' survey; and it remains only to say that, agreeably to the calls of his entry, the survey must be extended up the river and along Roberts' line, so as to include eight thousand five hundred acres. The survey cannot be extended beyond this limit, so as to interfere with valid entries which were made before the original survey of Voss. This was the construction given to the rights of the complainants under their entry and survey, and this court sustain that construction.

The decree of the circuit court must be affirmed, with costs. 162

7p 220

*WILLIAM YEATON AND OTHERS, APPELLANTS V. DAVID LENOX

AND OTHERS.

Motion to dismiss an appeal. A decree was pronounced by the district court of the United States for the district of Alexandria, in December, 1829, from which the defendants appealed, but did not bring up the record. At January term, 1832, the appellees, in pursuance of the rule of court, brought up the record and filed it; and on motion of their counsel, the appeal was dismissed. On the 9th of March, 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected. A copy of the record was returned with the citation, "executed" and filed with the clerk. By the court. The record is brought up irregularly, and the case must be dismissed.

The act of March, 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act it has been always held that an appeal may be prayed in court when the decree is pronounced. But if the appeal be prayed after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error.

The judicial act directs that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party to have at least twenty days' notice. This notice, the court understands, is twenty days before the return day of the writ.

APPEAL from the circuit court of the United States for the county of Alexandria, in the district of Columbia.

Mr. Coxe, for the appellees, moved to dismiss this appeal; an appeal in the same having been dismissed at January term, 1832, and this appeal not having been taken and filed according to the provisions of the judicial act and the rules of this court.

Mr. Neale, contra, who cited the following cases: Reily v. Lamar et al. 2 Cranch, 344, 1 Cond. Rep. 419; Wood v. Lide, 4 Cranch, 180, 2 Cond. Rep. 76; San Pedro v. Valverde, 2 Wheat. 132; Johnson v. Johnson's Administrators, 2 Mun. 304.

Mr. Chief Justice MARSHALL delivered the opinion of the court. In this case a decree was pronounced by the court of the United States for the county of Alexandria, in December, [*221 1829, from which the defendants in that court appealed, but did not bring up the record. At January term, 1832, the appellees, in pursuance of a rule of this court, brought in the record, filed it, and moved that the suit should be dismissed. The court ordered a dismission. On the 9th day of March, 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected.

A copy of the record was returned with this citation "executed,"

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