Simms v. Dickson

• Decision Date: 01 January 1812
• Citation: 3 Tenn. 137
• Court: Tennessee Circuit Court
• Parties: SIMMS v. DICKSON.

3 Tenn. 137

SIMMS

v.DICKSON.

Circuit Court, D. Tennessee.²

1812.

In this case both plaintiff [Simms' lessee] and defendant [Dickson] claimed under grants from the state of North Carolina. The grant under which the lessors of the plaintiff claimed title was dated in 1792, and was of an older date than the grant of the defendant. The defendant produced in evidence an entry made on the 23d day of October, 1783, in the following words: ‘Jonathan Greaves enters three thousand acres of land lying on the north side of Duck river, on the first creek above Spring creek, beginning on said river three quarters of a mile below the mouth of said creek, running north and east for quantity.’ Upon which entry a grant issued in 1795, containing the following description of the land: ‘Beginning on the north side of Duck river, on the said river, about three quarters of a mile below the moutn of the first creek above Spring creek, at a beech, running thence north,’ etc. The grant then describes the boundaries. Spring creek was proved to be notorious as early as February, 1784; and the witnesses who proved this notoriety also stated that a Mr. Drake, since dead, told them it had been named by himself and another man in the summer of 1783. It did not appear that any person except those two men had ever been on Spring creek at or before the entry of Greaves was made. The creek has been called Spring creek ever since. There was no proof that the corners and lines called for in the defendant's grant could be found or were in existence. The defendant also produced a plat of the survey upon which the grant issued, describing the land in the same words used in the grant.

Hayes & Dickinson, for plaintiff.

Cooke & Whiteside, for defendant.

Before TODD, Circuit Justice, and McNAIRY, District Judge.

TODD, Circuit Justice.

The first question which presents itself is as to the notoriety of Spring creek. Whether it possessed sufficient notoriety is a question of fact to be determined by the jury; but it may not be amiss to make some observations upon the subject of notoriety. Let it first be observed that the oldest grant cannot be set aside but by a special entry previously made. What is a special entry? Nothing more than an entry which truly describes the objects for which it calls. Upon examining the North Carolina land law it will be found that nothing is said about notoriety. It has been introduced by the courts for the purpose of aiding an entry otherwise defective. The object of the legislature was that every entry should be so made as to afford to a subsequent locator a reasonable opportunity of finding the land first located. This, no doubt, was the point in view in which the legislature of North Carolina considered the subject. But it happened in a great many instances that the locator in describing the land used a defective description. This, of course, made the entry void, unless something else appeared to remedy the defect. Under the influence of these considerations the courts of justice have very properly determined that, in the case of a defective description, the entry will still be good if the objects called for in the entry were notorious, that is, generally known by persons conversant in that section of the country. Thus we see that the whole doctrine of notoriety has been introduced for the purpose of aiding an entry, and we ought to be cautious how we permit it to work a destruction.

When we speak of notoriety we do not thereby mean that the object is known to all the world. It is intended only to convey the idea that the object was known by the name specified in the entry, to persons generally who lived or were conversant in the section of the country where the object existed. Where notoriety becomes necessary to be proved, the material matter to establish is, was this object generally known by the name mentioned in the entry, to persons conversant in the part of the country where the land is supposed to lie? If this question is affirmatively ascertained the notoriety of the object is established. It seems not to be questioned but that Spring creek was sufficiently notorious before the commencement of the plaintiff's claim; and it has been argued that although the creek was not generally known at...