Thomas Ellicott and Jonathan Meredith, Plaintiffs In Error v. William Pearl

• Decision Date: 01 January 1836
• Citation: 10 Pet. 412,9 L.Ed. 475,35 U.S. 412
• Parties: THOMAS ELLICOTT AND JONATHAN MEREDITH, PLAINTIFFS IN ERROR v. WILLIAM PEARL
• Court: U.S. Supreme Court

35 U.S. 412

10 Pet. 412

9 L.Ed. 475

THOMAS ELLICOTT AND JONATHAN MEREDITH, PLAINTIFFS IN ERROR v. WILLIAM PEARL.

January Term, 1836

[Syllabus from pages 412-414 intentionally omitted] In error to the circuit court of the United States, for the district of Kentucky.

The plaintiffs in error, citizens of the state of Maryland, on the 17th day of January 1831, sued out of the circuit court of the United States for the district of Kentucky, a writ of right against William Pearl, for a tenement containing one thousand acres of land, in the county of Laurel, in the state of Kentucky. The defendant appeared and took defence, and put himself on the assize; praying recognition to be made, whether he had greater right to hold the said tenement, with the appurtenances, as he held it; or whether the demandants, Ellicott and Meredith, to have it, as they demanded it. The demandants afterwards did likewise.

At May term 1834, the case was tried by a jury, who returned into court the following verdict: 'We, the jury, find that the tenant has more right to have the tenement, as he now holds it, than the demandants to have it:' and the circuit court gave judgment for the tenant accordingly.

At the same term of May 1831, other writs of right were sued out by the plaintiffs against other tenants of the land; and the like proceedings and judgment took place.

On the trial of the case, the following bill of exceptions was filed.

The parties having agreed that these causes should be heard at the same time, without prejudice to the right of either party, and that the evidence should be heard as to all, and to be applied to each respectively, the jury was so sworn; and the plaintiff, to support his part of the issue, introduced the patents to James Kincaid for two thousand acres, and for one thousand acres, and deed from James Kincaid to Samuel and Robert Smith, and the deed from Robert Smith to Samuel Smith, and the deed from Samuel Smith to the demandants, in the words and figures following. [The patents and deeds were inserted.]

The boundaries of the two thousand acres, surveyed and granted to James Kincaid, were 'in Lincoln county, on the east fork of Rockcastle, beginning at Kincaid's lick, on a branch of said fork, and on the north side, thence south and east for quantity, and bounded as followeth, to wit: beginning at said Kincaid's lick, on a branch on the north side of the east fork of Rockcastle two beeches, thence south five hundred and sixty-six poles, crossing said fork to two white oaks, thence east five hundred and sixty-five and a half poles, crossing several branches to a white and black oak, thence north five hundred and sixty-six poles, crossing said east fork to two black oaks, thence west five hundred and sixty-five and a half poles, to the beginning.'

The boundaries of the one thousand acre survey were, 'in Lincoln county, on the waters of Rockcastle, to begin at Grigsby's southeast corner of his entry of two thousand acres of land, thence west with Grigsby's line to his corner, thence south for quantity, and bounded as followeth, to wit: beginning on said Nathaniel Grigsby's south-east corner at a white oak and black oak, thence west five hundred and sixty-five and a half poles, crossing several branches with said Grigsby's line to his corner at two white oaks, thence south two hundred and eighty-three poles, to two black oaks, thence east five hundred and sixty-five and a half poles, crossing some branches to two chestnut oaks, thence north two hundred and eighty-three poles, to the beginning, with its appurtenances.'

The parties also agreed that the trial of each and all the cases should be had on the merits, as though there were no blanks in the pleas, and that neither party should take advantage of any defect in the pleadings.

The demandants also read the surveys of M'Neal, the one made out in this case, and the one made out in the action of ejectment lately depending before this court between the same parties, which surveys are made part of this bill of exceptions, by reference, and aldo introduced the said M'Neal, who stated on oath, that he was at the place shown on the plat as the beginning corner of Kincaid's two thousand acre survey; that the trees stood in an island of Pond creek, and that the letters W. H. were made on each of the large trees, and on one of them, the letters I. K. were also marked; that he run the line running south from that point, and observed two sets of marks, the one appearing old, and the other not so old as Kincaid's survey; that the old line trees appeared about as old as the corner trees and the letters, but that either was as old as the surveys of Kincaid, he could not say; that all he could say was, that himself and others thought corner trees and the old marks on the line, were made at the same time; that he had cut out a block on the line, it appeared to count for an old line, but it had grown so close that he could not count the annulations. The witnesses stated that in running the south line, he had crossed Rockcastle three times before he reached the corner, pursuing the course of the patent in the manner represented in the connected plat in this cause, and that the plat correctly represents Rockcastle river, where it is crossed by the several lines of Kincaid's two thousand, as run by him and laid down in the plat aforesaid. The plat made out in the action of ejectment, and which was read in evidence, as aforesaid, was objected to as incompetent evidence in this cause, by the defendants, but the objection overruled. M'Neal also stated, that in the plat made out in the ejectment case, Rockcastle river, except where it was crossed by the first line from the place shown him in the beginning, was laid down by protraction only, but he had actually surveyed and laid correctly the crossing of the river, by the different lines on the connected plat, in these causes; each of the demandants admitted that he resided, at the commencement of these actions, at the place represented as his residence on the plat, and surveyor's report made in these causes, and that if the beginning corner of the patent of James Kincaid, was at the point claimed by the demandants, the lands they respectively so hold, and claimed, were within the patent and deeds read in evidence by the demandants.

The defendants then introduced the patent to Jacob Remey, and Jacob Remey's deed to William Edwards, and William Edwards's deed to the defendant, William Pearl, as follows [The patents were here introduced]. The patent was dated the 15th of July 1789, and the land was described, as a 'certain tract or parcel of land containing twenty-nine thousand acres by survey, bearing date the 7th day of November 1785, lying and being in the county of Lincoln, on the waters of Rockcastle, and bounded as followeth, to wit, beginning three-quarters of a mile south of the mouth of Raccoon creek, and about ten poles from the same on the west side at two white oak trees; thence north two thousand four hundred and sixteen poles to a hickory and black oak trees; thence west one thousand nine hundred and twenty and a half poles to a white oak and black oak trees; thence south two thousand four hundred and sixteen poles to a white oak; thence east one thousand nine hundred and twenty and a half poles to the beginning, with its appurtenances.'

They then proved by the said M'Neal, that the deeds aforesaid of Remey to Edwards, and from Edwards to Pearl, include the land in contest, and are correctly represented on the connected plat; that he had followed an old marked line from the mouth of Raccoon creek, running north, and out of which he cut two blocks, which he thought counted to the date of Remey's survey.

That he had lived in the part of the country where the land in contest lies, upwards of thirty years, and had always known Rockcastle river, and Raccoon creek, and Pond creek by their respective names, since ever he had been acquainted in that part of the country; that he was on part of the lines of Pearl's deed, in 1799, before Pearl settled on the land, and that in the spring of 1800, William Pearl, claiming the whole of the land described in his deed under the patent to Remey, settled upon the land, as he understood, intending to take possession of his entire tract; and that Pearl, and those claiming under him, have held the possession of the land ever since, that the settlement of Pearl aforesaid, was made at or near the figures II, on the connected plat. That Pearl and those claiming under him, have always claimed to hold the land under Remey's patent; the other defendants all claimed under Pearl. The defendant also introduced John Crook, who swore that he was at the house of William Pearl in the spring of the year 1800, and that he was then living on Rockcastle, near the place represented on the plat made out in this cause by the figures II; that he came from the neighbourhood of Goose creek, or by Terrell's camp; and that Terrell's camp was about four miles from Pearl's, rather east, and Pearl's was all the settlement he then knew of in that part of the country. He was not at that time at the place represented on the plat as the house where James M'Cammon lived in 1801, nor could he say whether M'Cammon was then living there or not, that place is several miles distant from the place at which William Pearl then lived.

The defendant called Metcalfe, who stated that old James M'Cammon moved his family and settled on the land in controversy at the place represented as the house where James M'Cammon lived in 1801 on said plat, either in 1800 or 1801, and he thought 1800; and as he understood, under a purchase of a part of his land from William Pearl, but how much he did not know, nor could he say. He understood that M'Cammon had contracted with Pearl for part of his land, and settled under that contract, and continued to hold the land aforesaid for a year or two, when, by some arrangement or agreement...