1825.

M'Dowell

V.

Peyton.

It is the opinion of the Court, that the fourth and fifth counts, however informal, have substance enough in them to be maintained against a general demurrer, and that the judgment must be reversed, and the cause remanded for further proceedings. It will be in the power of the Circuit Court to allow the parties to amend their pleadings.

Judgment reversed accordingly.

Feb. 21st.

[LOCAL LAW.]

M'DOWELL V. PEYTON and others.

The following entry, "I. T. enters 10,000 acres of land, on part of a treasury warrant, No. 9759, to be laid off in one or more surveys, lying between Stoner's fork and Hingston's fork, about six or seven miles nearly northeast of Harrod's lick, at two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's fork, on the east side of the branch, then running a line from said ash saplings, south 45 degrees east, 1600 poles, thence extending from each end of this line north 45 east, down the branch, until a line nearly parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims," is not a valid entry, there being no proof that the "two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's fork," had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, without further aid than is afforded by the information that the land lies between those forks.

APPEAL from the Circuit Court of Kentucky.

This cause was argued by Mr. Wickliffe for

the appellant, and by Mr. Talbot for the respon- 1825. dents.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

M'Dowell

V.

Peyton.

This is an appeal from a decree pronounced in March 3d. the Court of the United States for the Seventh Circuit and District of Kentucky, dismissing a bill brought by the plaintiff, to obtain a conveyance for a tract of land in possession of the defendant under an elder grant, to which the plaintiff claims to have the superior equitable title. The defendant rests on his patent; and as the entry under which the plaintiff claims was made before that patent issued, the cause depends essentially on the validity of the entry. It is in these words:

Dec. 24th, 1782.-" John Tabb enters 10,000 acres of land, on part of a treasury warrant, No. 9739, to be laid off in one or more surveys, lying between Stoner's fork and Hingston's fork, beginning about six or seven miles nearly northeast of Harrod's lick, at two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's fork, on the east side of the branch, then running a line from said ash saplings, south 45 degrees east, 1600 poles, thence extending from each end of this line north 45 east, down the branch, until a line nearly parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims."

The counsel for the defendant insists, that this

M'Dowell

1825. entry is invalid, because it does not describe the land with that certainty which is required by the land law of Kentucky. They contend that the Peyton. description given to find the beginning is false, and calculated to mislead a subsequent locater.

v.

Harrod's lick, Stoner's fork, and Hingston's fork, are proved to have been objects well known by those names at the date of the entry, and serve as a general description of the country in which the land lies; but it is not shown, that the two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hingston's fork, had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, without further aid than is afforded by the information that the land lies between these forks. Its identity is proved, but the decisions on the act of 1779 require notoriety as well as identity. The plaintiffs' counsel maintain, that there are descriptive words in the entry sufficient to bring a person, using reasonable diligence, and searching for this beginning, near enough to it to find the two whiteash saplings. Those descriptive words are, "Beginning about six or seven miles nearly northeast of Harrod's lick, at two white-ash saplings, &c. standing at the forks of a west branch of Hingston's fork, on the east side of the branch." The information which is to guide a subsequent locater to the white-ash saplings, is the course and distance from Harrod's lick, and the forks of a west branch of Hingston's fork.

A survey was made by the order of the Court,

McDowell

V.

Peyton.

and the plat shows that the saplings mentioned 1825. in the entry are three miles and one hundred and forty-five poles from Harrod's lick, and that the course which leads to them is north 53 degrees east. The real distance, then, is about one half the distance called for in the entry, and the course varies eight degrees.

To obviate the objection founded on this variance, the plaintiff alleges the distinction between the descriptive and locative calls of an entry. The purpose of the first is to bring the subsequent locater into the neighbourhood of the land he means to avoid, and that of the second is to find the land already appropriated, so as to enable him to appropriate the adjacent residuum. The precision, therefore, which is necessary in a locative call, has never been required in that which is descriptive.

The correctness of this principle is not controverted. Still, it is necessary that the descriptive calls should designate the place so nearly, as to give information which would enable a subsequent locater of ordinary intelligence to find the land previously entered, by making a reasonable search. It will not be pretended, that in such a case as this, exactness in distance or in course, would be indispensable to the validity of the entry; but distance and course are both intended to lead to the ash saplings, and, if unaided by other description, could alone be regarded by the person who should search for them. He would pursue a northeast course at least six miles from Harrod's lick; and not finding a western branch VOL. X.

58

V.

Peyton.

1825. of Hingston, would search for such a stream in M'Dowell every direction, from the place to which he was conducted by his course and distance. In an unexplored country, covered with cane and other wood, it would be extremely difficult to find an object far from being conspicuous, at a distance of two or three miles, and would require more time and labour than ought to be imposed on a person desirous of appropriating the adjacent residuum. The counsel for the plaintiffs would not attempt to support such an entry; but they contend that the error in both course and distance is corrected by other parts of the entry, and by the situation of objects to which the attention is directed.

The land is required to lie between Stoner and Hingston; and the person who should pursue a northeast direction from Harrod's lick, in search of it, would strike Hingston at the distance of five and one eighth miles. He would, consequently, know that he had passed the ash saplings, and would return in search of them. His search would be directed to a western branch of Hingston, at the forks of which the two whiteash saplings would be found. It is contended, that this description would lead the inquirer to the mouth of Clear creek, proceeding up which, he would find at one of its forks the white-ash saplings, at which Tabb's entry begins.

If this statement was strictly accurate, there would certainly be great force in the argument founded on it. With certain information that Clear creek was called for in the entry, and that