its beginning was at a place so well described as to be known when seen, it might not, perhaps, be too much to require the person desirous of acquiring adjacent land to trace that creek to the forks at which the saplings stand. But the inquirer is not directed to Clear creek. He is directed to a western branch of Hingston, and two branches empty into that stream, the one above and the other below the point, at which a northeast course from Harrod's lick would strike it, and about equi-distant from that point. There is no expression in the entry which would, in the first instance, direct the inquirer to Clear creek, on which the saplings stand, in preference to Brush creek, on which they do not stand. His attention would be rather directed to Brush creek, by a circumstance which is undoubtedly entitled to consideration, and has always received it in Kentucky. It is this: Clear creek had, at the time this entry was made, an appropriate name, which distinguished it from the other western branches of Hingston; and a locater, intending to place his beginning on that creek, might be reasonably expected to call it by its appropriate name, and not to refer to it by a general description which it possessed in common with many other streams. The inquirer, therefore, would proceed, in the first instance, to Brush creek, because that creek would be designated, when Tabb's entry was made, only as a western branch of Hingston. The plaintiff contends that this error would soon be corrected, because the entry calls for a northeast course to run down the branch, and Brush 1825. M'Dowell V. Peyton. M'Dowell V. Peyton. 1825. creek bends so much at a small distance from its mouth, as to satisfy the inquirer that this could not be the stream intended by the entry. With the plat before us, we can readily make this discovery. But a person unacquainted with the course of Brush creek, would not make it until he had proceeded up it a considerable distance. He could not know, till he had done so, that the creek would not again change its course, and pursue a southwestern direction. If, after making this discovery, he should go to Clear creek, he would find its first course from Hingston a very discouraging one; nor would its course be adapted to the call of the entry, until he came within a very short distance of the fork at which the saplings stand. Add to this, Clear creek appears to fork several times before reaching the saplings; and at each of these forks, an accurate search must be made before the inquirer would proceed farther up the creek. The course and distance from Harrod's lick, mentioned in the entry, are calculated to mislead a person desirous of knowing the land it designates; and although these errors might unquestionably be corrected by other parts of the description, which would conduct us with reasonable certainty to the beginning, it may well be doubted whether the whole of this entry, taking all its parts together, and combining them, contains such reasonable certainty. Had it been now, for the first time, brought before a Court for adjudication, it is liable to such great and serious objections, that it would most probably be M⭑Dowell V. Peyton. pronounced invalid. But the highest Court of 1825. Kentucky has already given this decision; and this Court has always conformed to that construction of the legislative acts of a State, which has been given by its own Courts. This general principle is entitled to peculiar consideration, when it applies to an act which regulates titles to land. The case of Cochran v. Thomas, reported in Hardin, 261. depended on the validity of this entry, and in that case, the Court decided against its validity. The authority of this decision has been questioned on several grounds. 1st. It was made by only two Judges, when the Court consisted of four, the others being interested. Had a contrary opinion been avowed by both or either of the other Judges, or by any Judge since this decision was made, its authority would undoubtedly be much impaired, if not entirely annulled. But no such contrary opinion has been expressed, although the decree in Couchman v. Thomas was pronounced in the spring term of 1808. Since then it was made by a tribunal, which was at the time legally constituted, and has remained unquestioned for sixteen years, this Court must admit its authority in like manner as if it had received the formal approbation of a majority of the Judges. 2d. A second objection is, that it is a single decision; and the Courts of Kentucky do not consider themselves as bound by a single decision, if its principles are believed, on more ma 1825. M'Dowell V. Peyton. ture deliberation, to be unsound. Those Courts, we are informed, have often given different decisions on the same entry, when brought before them in a different case, prepared with more care. That different decisions will be often made on the same entry, can excite no surprise, when it is recollected that the validity of an entry does not depend entirely on its own terms, but on the application of those terms to external objects, and the general notoriety of those objects, as proved by the testimony in each case. If in one case, the party claiming under an entry had neglected to prove the notoriety of some material call, by the notoriety of which its certainty was to be established, in consequence of which defect the entry was declared to be invalid, this could constitute no reason for pronouncing the same decision in another case, between different parties, who had been careful to bring before the Court ample testimony of the fact on which the cause must depend. This difference of decision would constitute no difference of principle. But the Court can perceive no new testimony in the case under consideration, which can vary it, to the advantage of the plaintiff, from the case of Couchman v. Thomas. It may be very true, that a single decision cannot be permitted to shake settled principles, and that this Court ought not to consider one judgment as overturning well established doctrines, and introducing a new course of opinion. But, certainly, a decision on the very point which has remained for many years unquestioned, has the first impression in its favour, and must be proved 1825. to overturn established principles before this Court can disregard it. The land law of Kentucky requires that the holder of a land warrant, shall locate it "so specially and precisely, that others may be enabled with certainty to locate other warrants on the adjacent residuum." In construing this provision of the law, Courts have always inclined to support entries, where this inclination could be indulged consistently with the provision itself; but they have always supposed a reasonable degree of precision and certainty to be indispensable to the validity of every entry. They have laid down great general principles, in the application of which to particular cases, the shades of difference are as numerous and as nice as in the application of the principle, that the intention of the testator shall govern, to the words of a will. The description of the land to be acquired, which every entry must contain, may be divided into general and special. The general description must be such as to bring the holder of a warrant to be located into the neighbourhood of the land already appropriated, and such as to enable him to find that land with reasonable diligence; the special description, or, in the technical language of the country, the locative calls of the entry, must be such, as to ascertain and identify the land. All the cases recognise these principles, and claim to come within them. M'Dowell V. Peyton. |