Shepherd v. Baily

• Decision Date: 01 January 1813
• Parties: SHEPHERD v. BAILY.
• Court: Tennessee Circuit Court

3 Tenn. 369

SHEPHERD

v.BAILY.

Circuit Court, D. Tennessee.

1813.

The plaintiff [Shepherd's lessee] introduced a grant from the state of North Carolina to John Haywood, for five thousand acres of land, dated the 20th of December, 1791, describing the land in contest as follows: ‘On the waters of Richland creek, a branch of Elk river, on a small creek which the commissioners and guard came down on their return from Elk river, the day before they encamped on the north side of Richland creek, beginning on the bank of said small creek at a white oak, one mile above a large spring; thence west eight hundred and ninety-four poles to a mulberry; thence north eight hundred and ninety-four poles to two dogwoods; thence east eight hundred and ninety-four poles to a stake; thence south eight hundred and ninety-four poles to the beginning. Evidence was also introduced to prove the notoriety and identity of the small creek and spring; but it appeared that no actual survey had ever been made. The defendant claimed under a grant to Stokeley Donelson, issued by the state of North Carolina, for five thousand acres, on the 17th of June, 1790. The plaintiff, for the purpose of giving his title effect beyond the date of the grant to Donelson, introduced the following entry: ‘25th October, 1783. John Haywood enters five thousand acres on the waters of Richland creek, between said creek and Elk river, on a small creek falling into Richland creek, which small creek the commissioners and guard came down on their return from Elk river the day before they encamped on the north bank of Richland creek, including a large spring about two miles from the mouth of said small creek, beginning on the bank of said small creek, one mile above said spring, running down said small creek for complement.’ It appeared that the small creek from the spring to its mouth run north 47 west; from a point on the bank of the creek one mile above the spring to the spring is north 87 west; and from the spring with the meanders of the creek to its mouth is seven hundred and seventy poles. The land described in the grant is wholly north of the point of beginning. If the point of beginning had been the center of the base of the survey, by no legal shape to be given to the survey would it include the land in question; nor if the survey were made in a square or oblong, to the cardinal points, and down the creek, making the creek the center of the survey, so far as it extended, would the land claimed by Donelson's grant be included.

The principal points relied upon were that the entry under which the plaintiff claims was not sufficiently special to avoid an elder grant. That the creek ‘which the commissioners and guard came down’ at a particular period, is not sufficiently described. It acquired no notoriety by that circumstance, and if it were capable of identity it would be imposing too much trouble on a subsequent locator; and that the grant of the plaintiff does not cover the same land described in the entry, should the entry be deemed special.

Haywood, Balch & Trimble, for plaintiff.

Whiteside, Cooke, Grundy & Hayes, for defendant.

McNAIRY, District Judge (charging jury).

The plaintiff has introduced a grant for the land in question, but of a younger date than the grant under which the defendant claims. To make his title overreach that of the defendant he has had recourse to his...