Lockhard v. Asher Lumber Co.
| Decision Date | 09 March 1903 |
| Citation | 123 F. 480 |
| Parties | LOCKHARD et al. v. ASHER LUMBER CO. et al. |
| Court | U.S. District Court — Eastern District of Kentucky |
Holt & Alexander and Morris & Newberger, for plaintiffs.
Beckner & Jouett, W. B. Dixon, J. H. Tinsley, and Breckinridge & Shelby, for defendants.
This is a suit in equity to quiet the title to a tract of land in Harlan county, Ky., containing 40,400 acres. The plaintiffs' claim thereto is based upon a patent issued November 4, 1873, to C. O. Lockhard, their devisor. It is set forth in the bill and filed as an exhibit therewith. [1] Certain of the defendants have demurred, and certain others have answered, and to a portion of the answers the plaintiffs have filed exceptions. The ground of demurrer is also relied on in said portion of the answers, so that the demurrers and exceptions raise the same questions The ground of demurrer is that the vacant land statute of Kentucky, in existence when said patent was issued, did not authorize the issuance of a patent for a greater quantity of such land than 200 acres, and, as an inspection of said patent shows that it covers a much larger quantity, it is void on its face, and plaintiffs' devisor acquired no title thereunder. That statute was chapter 102, p. 430, of the Revised Statutes of Kentucky, which took effect July 1 1852, and continued if force, save as affected by subsequent amendments, until December 1, 1873, a few days after the issuance of said patent, when the General Statutes went into effect. Section 3 thereof is in these words:
None of the amendments to said section have any bearing on defendants' said claim, except in so far as they may aid in the proper interpretation of the relevant portions thereof. Said section prescribed a gradual process, consisting of four separate and distinct stages, by which one desiring to acquire title to vacant land in any of the counties of the state might do so. Those stages were: An order of the county court of the county in which the land lay, entered of record, authorizing the entry and survey thereof, purchased by said person from said court; an entry of a description of said order in the surveyor's book of the county; a survey by the surveyor, a plat and certificate thereof to be prepared by him and thereafter deposited, with a copy of said order, in the register's office; and a patent. In short, the order was the initial stage; the entry and survey were intermediate stages, and the patent was the final stage. With the order, said person acquired a valid claim to vacant land, which, as it passed through the intermediate stages, into the final one, grew in intensity. The order was a float, the entry an appropriation or segregation, the survey a delimitation, and the patent a conveyance. At its initiation such a claim was limited in extent. It could not exceed 200 acres of such land, for it was expressly provided that an order could be obtained for only such quantity; and the question which defendants' contention, that under said statute a patent could not issue for a greater quantity, presents is whether it was possible thereunder for a claim to vacant land, as it passed through these various stages, to grow extensively, as well as intensively. It is certain that it could not so grow in entering upon the first intermediate stage, to wit, the entry; for the entry was but a description of the order, and amounted only to an appropriation of the quantity of land which it called for. If it could so grow at all, it must have been as it entered upon the second intermediate stage, the survey, or the final stage, the patent; and it could only so grow there by the union of two or more entries in one survey, or two or more surveys in one patent. So that the question involved in defendants' contention, when we get to the bottom of the matter, is whether or not the statute authorized the union of two or more entries in one survey, or two or more surveys in one patent. It is certain that it did not authorize such a union of two or more entries, or of two or more surveys, when held by different persons. If it authorized any union at all, it was only a union of two or more entries, or of two or more surveys, when held by one person. It is certain, further, that it did not expressly authorize either of said unions. If it authorized either at all, it did so impliedly.
First, then, as to whether the statute impliedly authorized the union of two or more entries, when held by one person, in one survey. This question presupposes that it authorized one person to acquire two or more entries which could be so united. Of this, however, there is, on the merits of the question, at least, some doubt. If such authority existed, it, too, was an implied, and not an express, one; and the sole ground for implying it was that there was no express prohibition against it. This, perhaps, was sufficient ground therefor, unless there is something in the letter of the statute, or the object which the Legislature intended to accomplish by some provision thereof, to indicate an intention on its part that such authority should not exist. There were but three possible ways in which one person could have acquired two or more entries under said statute, to wit: By purchasing two or more orders from the county court and making entries in pursuance of them; by succeeding in whole or in part to two or more entries, or two or more orders, as heir or devisee, and, if the succession related to orders, making entries in pursuance of them; and, lastly, by purchasing, in whole or in part, two or more entries from the persons who made them, or two or more orders from the persons who purchased them from the county court, and making entries in pursuance of them. In the letter of the statue, an indication may be found of an intent on the part of the Legislature that neither orders nor entries should be assignable, and that, therefore, one person should not have authority to acquire two or more entries in the last way suggested. As, for instance, it was expressly provided by subdivision 9 of said section that a plat and certificate of survey should be assignable, and that upon the assignment a patent should issue to the assignee. This provision may be regarded as containing an implicit negative that neither an order nor an entry should be assignable, upon the ground that, if the Legislature had intended that either should be, it would have so provided, the same as in case of a survey; and the effect of the omission so to provide may be claimed to be strengthened by the consideration that, though the vacant land laws of Kentucky have always contained an express provision in regard to the assignment of vacant land claims, such provision had not always been limited to the survey.
The act of 1815 (Acts 1814-15, p. 402, c. 249, Sec. 12), the first act authorizing the acquisition of such lands generally, and modeled after the Virginia land laws, contained, the same as did those laws, an express provision to the effect that warrants and plats...
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