Massie v. Watts

• Decision Date: 01 February 1810
• Citation: 6 Cranch 148,10 U.S. 148,3 L.Ed. 181
• Parties: MASSIE v. WATTS
• Court: U.S. Supreme Court

10 U.S. 148

6 Cranch 148

3 L.Ed. 181

MASSIE v. WATTS.

February Term, 1810

THIS was an appeal from the decree of the circuit court of the United States, for the district of Kentucky, in a suit in equity brought by Watts, a citizen of Virginia, against Massie, a citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the state of Ohio, the defendant having obtained the legal title with notice of the plaintiff's equitable title.

The bill stated that the defendant Massie (the appellant) had contracted with a certain Ferdinand Oneal, to locate and survey for him a military warrant for 4,000 acres in his name, (which the plaintiff afterwards purchased for a valuable consideration), and to receive for his services in locating and surveying the same, the sum of 50l. which the plaintiff paid him. That the defendant located the said warrant with the proper surveyor, and being himself a surveyor, he fraudulently made a survey purporting to be a survey of part of the entry, but variant from the same, and contrary to law, whereby the survey was entirely removed from the land entered with the surveyor, for the fraudulent purpose of giving way to a claim of the defendant's which he surveyed on the land entered for the plaintiff, whereby the plaintiff lost the land, and the defendant obtained the legal title. That the land adjoins the town of Chillicothe, and is worth fifteen dollars an acre. The bill prays that the defendant may be compelled to convey the

land to the plaintiff, or if that is not in his power, that he make compensation in damages.

The defendant, by his answer, denied that he contracted with the plaintiff to locate and survey the warrant in the name of Oneal, but admits that, in 1787, he was requested by W. Ellzey, to locate the warrant for Oneal; that Ellzey informed him he was not authorized to make any special contract with the defendant for his services, but he had no doubt, if he did the business, he would receive the customary compensation, which was 12l. 10s. per 1,000 acres, or one third of the land.

He admits that he made the entry, and that the plaintiff has paid him the 50l. But he denies that he made the survey improperly, or with a fraudulent intention. He says that in the year 1793, as a deputy-surveyor, he surveyed the land on the Scioto, on which the claim of Oneal depended; but not wishing to take upon himself the construction of Oneal's entry, he merely meandered the river, and referred the question to the principal surveyor, by whose directions he made the survey for Oneal in 1796, and without any instructions from Oneal or any agent for him. That when the entry was made, the country had been but recently explored, and none of the locators knew by survey the meanders of the Scioto. He does not admit that the entry has been surveyed contrary to location, but he surveyed it as he would have surveyed it for himself.

He admits he made an entry for himself, and intended to appropriate the vacant land, but it was not by any procurement of his, that his patent was prior to Oneal's. That the plaintiff did not become wholly interested in the claim until long after the survey was made.

After the defendant's answer came in, the plaintiff amended his bill by making Anderson (the principal surveyor) a defendant, and charged that if the survey for Oneal was made by the directions of Anderson, as alleged by the defendant Massie, it was with a fraudulent design on the part of Anderson to appropriate

to himself the land described in Oneal's entry, and that if he had no design, he was still responsible for the consequences of the illegal survey.

Anderson by his answer denies all fraud, and most positively denies that he gave Massie any instructions to make the survey, as falsely stated in the bill. That the survey was made of 530 acres, in part of the entry, which survey was returned to his (Anderson's) office, and which he did not record for about the term of one year from the time he received it, doubting whether the survey had been properly made; but after a critical examination of the subject he concluded that it was not improperly made and recorded it.

The plaintiff amended his bill again by charging that the defendant Massie was the owner of Powell's entry, and had surveyed and obtained a grant therefor, and calling upon him to answer when he became the purchaser of Powell's right.

To this Massie answered, that after surveying Oneal's entry in the spring 1797, he purchased Robert Powell's survey, before which time he had no interest in the land, and has sold the whole of it, but made a conveyance of only a part.

There had been certain facts found in the cause by a jury according to a practice heretofore adopted in chancery suits in the courts of Kentucky, but the court ordered 'that the facts found by the jury should be set aside.'

The following opinion of Judge Innis (Judge Todd being absent) states the facts of the case so fully that nothing need be added in stating the case.

'The complainant having acquired the equitable right to certain lands conferred on Ferdinand Oneal by the state of Virginia, as a bountry for military services performed by him as an officer during the revolutionary war, has instituted this suit with a double aspect, first, to recover one thousand acres of land,

which had been entered for Oneal on the Scioto river, upon a suggestion that the defendant Massie, who was the locator, had wrongfully deprived him of the land, by surveying Robert Powell's entry so as to cover part of Oneal's land, and by a subsequent entry and survey of his own, hath taken the balance. Secondly, if the complainant shall establish his right to the land in contest, and cannot obtain a conveyance therefor, that the decree may be for the value thereof, in money. It appears from the pleadings in the cause that the defendant Massie has purchased Powell's land, and that he has appropriated, by entry and survey, the adjoining land. The three following entries were made upon the Scioto river adjoining each other. 'No. 480. 1787. August 13, Major Thomas Massie enters 1,400 acres of land beginning at the junction of Paint creek with the Scioto, running up the Scioto 520 poles when reduced to a straight line, thence off at right angles from the general course of the river so far that a line parallel thereto will include the quantity.'

'No. 503. Captain Robert Powell enters one thousand acres of land beginning at the upper corner, on the Scioto, of Major Thomas Massie's entry. No. 480. running up the river 520 poles when reduced to a straight line, thence from the beginning, with Massie's line so far that a line parallel to the general course of the river shall include the quantity.'

'No. 509. Captain Ferdinand Oneal enters one thousand acres beginning at the upper corner on the Scioto of Robert Powell's entry. No. 503. running up the river 520 poles when reduced to a straight line, and from the beginning with Powell's line so far that a line parallel with the general course of the river shall include the quantity.' Surveys have been made upon the entries of Thomas Massie and Robert Powell, so as to cover almost the whole base of 1,560 poles, the space which was allotted for the three claims on the river, and 530 acres of land have been surveyed for Oneal, by the defendant Massie in part of his entry, which it is impossible upon any construction he can

hold. To form a correct opinion in this case the several entries of Massie, Powell and Oneal must be brought into one view, and, as far as it is possible, consistent with the entries, to ascertain the object and intention of the locator. It is evident, from the manner in which these entries are worded, that the locator had no doubt in his mind, at the time the entries were made, of having given that space which would enable him to secure, by legal surveys, the quantity of land located for each person. It becomes, then, the duty of the court to consider the case with a reference to this object. No difficulty arises as to the manner in which the entry of Thomas Massie ought to be surveyed, the calls of his entry being express and positive. His entry ought to have been surveyed in the following manner; to begin, as he has done, at the junction of Paint creek, and the Scioto, and then to run up the river so far as will ascertain the termination of the 520 poles called for on the river, when reduced to a straight line. This will reduce his base to a point below the first flooded land represented in the connected plat, above the mouth of Paint creek, thence he is to run out at right angles with the general course of the river. The unexpected bends in the Scioto river have induced such 2 construction to be placed on the entries of Powell and Oneal, by the defendant Massie that, in executing the surveys of Thomas Massie and Powell, he considered Oneal as being excluded from obtaining any part of the land upon the base of 1,560 poles, the space allotted for three entries.

The contest in this case, in consequence of the manner which has been pursued in making Massie's and Powell's surveys, rests principally upon the construction which is to be given to Powell's and Oneal's entries; and, as the latter is dependent on the former, equity requires that, if it be possible to secure to each his portion of land agreeably to their entries, it ought to be so decided, provided it can be done consistently with the spirit of the entries, and the real intention of the locator.

From an attentive consideration of the entries, the

object of the locator was evidently to give to each of the proprietors of the warrants an equal base on the river, and make it the ruling principle in shaping the surveys. It only remains, then, to be considered whether the words in the entries will bear such a construction as to effectuate the object, and secure the lands to Powell and Oneal, which the locator intended at the time he made...