Hoggat v. McCrory

• Citation: 1 Tenn. 8
• Court: Tennessee Circuit Court
• Decision Date: 31 May 1799
• Parties: HOGGAT v. McCRORY & GILLASPIE.

1 Tenn. 8

HOGGAT

v.McCRORY & GILLASPIE.

Superior Court of Law and Equity of Tennessee.

May, 1799.

Bill in Equity.--The plaintiff claimed by a deed of conveyance from Bradley, whose claim is found on the following entry of a pre-emption right. “No 370, March 23, 1784, Edward Bradley enters a pre-emption of 640 acres of land, lying on the head of a branch that runs into Stone's River, about one mile above the Station, including the Cave spring on the north side of the trace marked E B,” upon which a survey was made August 10, 1790, and a grant issued November 27, 1790, No. 348. The plaintiff claims the land, a view of which is exhibited in the annexed plat by the lines A B C D E F G H I. The defendants contended that the plaintiff's claim did not cover the land included within the lines H I J K, and if it did, that the plaintiff could not hold consistently with the principles of law, against the claim of the defendants.

The defendants claim, by virtue of a military warrant, No. 1984, entered in the name of Thomas M'Crory, assignee of Jonas Reaby, 640 acres of land, “lying on the west side of Stone's River on the upper side of the first big branch, above the old Station, running up the river and west;” entered December 31, 1785, which was surveyed on the first day of April, 1786, and represented by the lines, J K L M, upon which a grant issued on the 10th of July, 1788. The defendant (M'Crory), sold that part of the land now in dispute, to the defendant, Gillaspie, with other lands adjoining. The lines E N O H represent Wm. Moore's pre-emption.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Lewis, for the defendant, contended that the entry of Bradley, under whom the plaintiff claims, was vague, inasmuch as it did not describe in what part of the land the spring should be included. If the entry were not void, it was clear that the spring ought to have been included in the center of the square; this is the most rational construction of the entry so as to give all subsequent enterers a fair and equal chance.^a1 Make the spring the center, Bradley could not interfere with the claim of M'Crory. Bradley regarded in his running the older entries and surveys of Buckhannan, Todd, M'Murray, which continued from his beginning at A until he came to E, why did he disregard Moore's, and run 114 poles into that and through the whole length of his survey? A man is not bound to run in a square or an oblong not exceeding in length twice its breadth, if he be confined by older lines; but an enterer has his election whether he will be confined by older lines or not. If he chose to depart from this principle, and run into older claims, he is as much bound to run in a square or an oblong, as if any older claim did not exist in the neighborhood at all.

Clearly, then, when Bradley departed from the principle of adhering to other lines, when he ran into Moor's, he was at least bound to run in an oblong not exceeding in length twice the breadth. In this case he would not have interfered with the defendant's claim, the nearest part of which is 490 poles from the western boundary of Bradley's tract, and 324 poles east from Bradley's spring. The intention of an entry is to give notice to mankind where the enterer designs to appropriate his land, so that others may know how to enter. How could any man suppose that Bradley, entering as he did, “to include the spring,” would run down to Stone's River, and take land 450 poles east of the spring. Such a construction of this entry must leave all subsequent entries in jeopardy. It is but fair that prior enterers should give those who come after an equal chance. Equality is justice, and justice is law. The fair construction of this entry would compel Bradley to place his spring in the center of a square, at least he should not be permitted to run further than 452 poles, the duplicate proportion of the side of an oblong of 640 acres. Bradley has voluntarily assumed the line, E F, as his western boundary, running an oblong east from thence, would not come within 38 poles of the defendant's line. It was doubtful whether the survey, as actually made by Bradley, included the land in dispute; the jury have found that it did, but that finding does not bar an investigation of the law arising upon the entries and surveys. If Bradley were not authorized under his entry to run so as to take the land in dispute, he can not obtain a decree for 38 1/2 acres which is in dispute.

Every individual in the exercise of legal rights, must so demean himself as to give an equal opportunity for the exercise of similar rights in others.

If the plaintiff were permitted to prevail in the recovery of this land under this entry, no subsequent enterer could be safe so long as there was an older vague entry in the neighborhood. The latitude of running which the plaintiff contends for, under Bradley's entry, will lead to endless uncertainty and perplexity. For aught that could appear to subsequent enterers to the contrary, Bradley might have designed by his entry to run 450 poles, north, south, or west of the spring, as well as that distance east. Can it be possible, that the law could have designed...