Wilsou

V.

Mason.

*49

would have been if surveyed according to the entry of the 29th April, 1780.

George Wilson's entry is as follows, viz.

"1784, April 9th, George Wilson enters 40,926 acres upon five treasury warrants, No. 17,639. 19,143. 19,614. 19,616. 12,795. on the south side of Panther creek, a branch of Green river, beginning at the upper and north-east corner of George Mason's 8,400 acre survey on the bank of Panther creek, which survey begins, perhaps, about three miles from the mouth of the said creek and 320 poles upon a direct line above the mouth, of the first fork of the said creek from the mouth, thence running south 10deg.east, passing the said Mason's south-east corner, 2,600 poles; thence north 80 deg. east 3,200 poles; thence off at right angles, northwardly, to the bank of Panther creek, and down the same, with the several meanders thereof, to the place of beginning."

Upon four of those warrants, 30,000 acres were surveyed for Wilson on the 2d June, 1784, and located so as to comprehend the whole of Mason's survey of 8,300 acres.

The following facts were agreed to by the counsel for both parties, viz.

"1. We admit that Panther creek has been known and called by that name, Panther creek, generally, since the beginning of the year 1780, and is truly represented on the plat returned in this cause, and also the forks thereof.

"2. That at the distance of twelve and one quarter miles and thirty-six poles, on a direct line from its mouth, the said creek divides itself into two forks, viz. the fork marked on the plat returned in this cause, as the west fork of said creek; and the other, the fork marked on the plat, Panther creek; and that from the size and natural descriptions of these forks, they would be remarked and called such by strangers who should explore the waters of that creek.

"3. That the said forks were generally known, and called the forks of Panther creek, from the beginning of the year 1780; and that they were notorious as such, to all who had acquaintance with the waters in that part of the country.

4. That in the winter before the said entries were

made for said defendant, the said agent, Hancock Lee, went down on Panther creek, and explored the country thereabouts; and encamped thereabouts four or five weeks for that purpose; and there were several others in company with him, who all went on the business of viewing the land in that quarter.

"5. That James Hord was the surveyor who surveyed the said entries in September and October,

1783.

*6. That Hubbard Taylor was the special attorney of the defendant Mason, for the purpose of making his surveys on Panther creek, among which was the one now in controversy, and previous to making said surveys, the said Taylor made out a plat of Panther creek, up to the forks there of, by actual survey, for the purpose of satisfying himself how the survey of the said defendant ought to be made; which plat he delivered to the said Hord, when he went to make the surveys of the said lands, for his instruction; and by the said plat the said Hord was instructed to make the surveys of the said defendant as they are now surveyed. The entries, alluded to in the 4th fact, are those found by the jury to have been made for the defendant, by Hancock Lee, at the same time with that of the land in controversy.'

The verdict of the jury was as follows, viz.

"We of the jury do find the facts following for the plaintiff, excluding those agreed to by the attor

neys:

"1. That the said Hancock Lee, at the time he made the said entry for the said Mason, did also make the several other entries for him.

"2. That the plats and certificates of survey lay three weeks in the office before they were recorded.

66

3. That at the time of making out and recording the plats of said surveys, William Mason was agent to the said George Mason, and came to this country for the express purpose of attending to his land business; and had power and instructions to resurvey any of the said Mason's entries, which he should find to have been erroneously surveyed, or interfering with better

claims.

"4. That it was a general practice in the offices. of surveyors, when a survey was found to have been

Wilson

V.

Mason.

* 50

Wilson

V.

Mason.

* 51

made erroneously, to make the same over again at the request of the parties concerned; and the said practice prevailed also in cases of surveys record

ed.

"5. That when William Mason came to the surveyor's office to take out the plats in this case, and also those in the other cases in which George Mason was concerned, the surveyor told him that the entries of the said George, the defendant, had been surveyed wrong; and took a pen and paper and explained to him the calls of the entries, and by comparing them with the surveys, showed him that they were erroneous; and offered to send a deputy with him, without further or additional expense, to make the surveys aright, with which proposal the said William seemed pleased, and proceeded no further in the business at that time; but went away, and after some days came back to the said office, and told the surveyor, that the entries of said Mason were so made that they would clash with each other, if surveyed otherwise than they then were; and he did not see that the surveys could be amended: whereupon he took out the plats and certificates of survey to return them to the register's office, and actually did so; which transaction happened at the office of the surveyor about the 12th of September, 1784.

"6. That the lands, generally, over all the state of Kentucky, except the land reserved by law for entries, are involved in disputes, by different entries, and surveys having been made for the same tracts.

7. That it was usual for the surveyors to survey entries agreeable to the directions of the proprietors, or their agents, when such directions were given.

"8. That a law, passed by the assembly of Kentucky in 1792, prohibited any further entry of land with the surveyors, and that ever since that time no land could be appropriated by virtue of land war

rants.

9. That the practice of entering for land was a general strife for the best legal entry.

"10. That George Mason's entry of 8,400 acres, made the 17th day of October, 1780, is surveyed on Panther creek, and a large branch thereof; and not on either of the main forks of said creek, as appears

by the plat; and that the survey of 8,300 acres, being the land in controversy, adjoining the last-mentioned survey, above, on said creek, and described in the plat in this cause by the letters and figure A. E. F. 8. is claimed, by the defendant Mason, as a survey made by the said Mason, on an entry of his, dated the 29th day of April, 1780, for 8,300 acres of land; is on said creek and a branch thereof, and not on either of the main forks, as appears by the plat.

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11. That the place designated, in the corrected plat, by the letter A. on the south side of Panther creek, is the place called for by the plaintiff, as the beginning corner of his entry of 40,926 acres, and described agreeable to the plat.

"12. That it was a practice, in the office of William May, surveyor of Jefferson, with whom the defendant Mason's entries were made, and by whose deputy surveyor, James Hord, the defendant's surveys were made, to alter surveys discovered to be erroneous or wrong, after they were recorded, and survey them aright, without further or additional expense to the owners of such entries, and to proceed on the plats of the amended surveys, as the proper plats of the legal

survey.

"13. That the said Hord, when on his way to make said surveys, called on said surveyor of Jefferson for copies of the defendant's entries, and on seeing them was struck with the variance between the calls of the entries and his instructions, in point of location, and on that account did not return the plats of the said surveys, until he had seen Hubbard Taylor, and showed them to him, and represented his opinion of such variance; but, on their being shown to the said Taylor, he directed said surveys to be returned as they were then made.

"14. That the said Hord was fully informed of the forks of Panther creek, when he was making said defendant's surveys, and saw the same, and about the same time at which he made the defendant's said surveys, and before he returned from doing the

same.

(Signed)

“Daniel Weisiger, foreman." "We of the jury do find the following facts for the defendant Mason:

Wilson

V.

Mason.

* 52

Wilson

V.

Mason.

**54

"1. That the entry made in the name of George Wilson, April 9th, 1784, of 40,926, acres on the south side of Panther creek, claiming under which the said Wilson entered this caveat, although made in his name, was made for the benefit of Christopher Greenup and John Handley, as well as for his benefit, and that the said Greenup and Handley were, at the time of making the entry, and long since, partners with him in the same.

4

"2. That John Handley, then a deputy surveyor of the county, made the said entry of 40,926 acres, for himself and the other partners; and before he made the same, had obtained information, of the surveys made for George Mason, on his entries of 8,300, and 8,400 acres, on the south side of Panther creek, from the surveys then in the office of the surveyor.

3. That the said George Wilson, Christopher Greenup, and John Handley, had before, and at the time the said entry of 40,926 acres was made, notice of the place where, and the manner in which, the surveys had been made for George Mason, on his entries of 8,300 acres, and 8,400 acres, on the south side of Panther creek.

"4. That John Handley, before the said entry of 40,926 acres was made, had notice that the land, now in dispute in this caveat, had been included in Mason's survey, on his entry of 8,300 acres.

“5. That the surveys, made for the said Mason, on his entries of 8,400, and 8,300 acres, on the south side of Panther creek, were returned to the office of the surveyor of the county, in the course of the fall,

1783.

(Signed) "Daniel Weisiger, foreman." The judgment of the district court of the United States, for the district of Kentucky, at June term, 1800, in the caveat of Wilson v. Mason, was, "That the defendant hath the better right to the land in controversy; it is therefore ordered that the caveat be dismissed, and that the defendant recover against the plaintiff his costs in this behalf expended."

* In the caveat of Mason v. Wilson, the judgment was, "That the plaintiff recover against the defendant so much of the land in controversy as is included within the survey of 8,300 acres, made by George Mason, on