#### *McNeel v. Herold.

July Term, 1854,

Lewisburg.

Absent Daniel, J.

1. Waste and Unappropriated Lands—Entry—Essen= tiais.—An entry of waste and unappropriated land, to be valid, must call for objects which possess, that notoriety in themselves, or they must be so particularly described, that other persons, by using due care and reasonable diligence, may readily find them.

2, Same—Same—Descriptive and Locative Calls—Certainty of.*—The general or descriptive calls, and *137the particular or locative calls, of the entry must possess that reasonable degree of certainty which *will put*a subsequent adventurer duly upon his guard ; and the locative calls must be found to be embraced within the descriptive calls, and they should properly he consistent with the latter and with one another : Though in certain cases, where all the calls of an entry cannot be satisfied, the courts, for the purpose of sustaining it, will reject such as appear vague and repugnant, and hold to those appearing to be certain and consistent.

3. Same—Same—Same.— Where there are several distinct and independent calls in an entry, it is not necessary that all the objects thus called for should be known and recognized by the public; or that they should all be described with that specialty that a subsequent locator can readily find them : But it is necessary that some one or more of the leading calls should be thus known, or so described that other persons, with due care and proper diligence, maybe led to ascertain their positions, and thus distinguish the land appropriated trom the adjacent residuum.

4. Same -Same—Same—When Court Takes Notice of without Proof.—The obiects called for are sometimes so connected with the general history or geography of the country or its legislation, that the courts will take notice of them ; and they will be deemed of general notoriety, and sufficiently identified, -without further proof ; And an entry calling for such objects may be supported without proof of notoriety or identity.

5. Same Same—Same--When Must Be Proved,— When the objects called for possess but a local notoriety, the party affirming the validity of the entry, must prove the identity of the land intended to be appropriated, and that the calls of the entry are such that a subsequent locator, in the exercise of proper judgment and reasonable diligence, would be enabled to distinguish it from the surrounding lands, so as to appropriate for himself the adjacent residuum.

6. Caveat—Objects Called for Not of Public Notoriety—Special Verdict—Requisites of.†—In a *caveat,*where the objects called for in the entry are not of such public notoriety as that the courts will take notice of them, a special verdict must find that the objects called for have a real existence, and are such as is required to make it a valid entry: and a finding defective in these respects will not be remedied by finding that the suryey was made in conformity with the entry.

7. Same—Party Who Pthes Hust Show Title.—A party who files a *caveat*must show a title to the warrant under which his own entry a,nd survey were made; and if he fails to do so, his *caveat*will be dismissed.

On the 23d of July 1849, Benjamin Herold made an entry with the surveyor of Pocahontas county, of three thousand acres of land on the waters of the Slate fork and Big Spring fork of Elk river, being the same laud embraced in a deed to the said Herold and one David Hanna from Lewis Pennell, recorded in the clerk’s office of said county. The entry also described the land as adjoining the lands of G. B. Moffett and five other persons named, and a survey called “Adams’ survey;” audit purported to have been made by virtue of part of a warrant of three thousand five hundred and ninety acres, No. 17,826.

On the 27th of April 1850, Herold made a survey, purporting to be on his said entry, but embracing three thousand nine hundred and seventy acres. The local description of the land is the same as in the entry, with the addition of the courses and distances of the lines constituting the exterior boundary, the different kinds and position of timber trees adopted as the corners, and the crossings of water courses intersected by some of the lines. This survey purports to have been made as to three hundred and eighty acres, by virtue of part of a warrant of one thousand acres, No. 18,216, and as to three thousand five hundred and ninety acres, by virtue of a warrant of three thousand five hundred and ninety acres, No. 17,826.

On the 4th of May 1850, Paul McNeel entered with the same surveyor two thousand acres of land on both sides of the Big Spring fork of Elk river, to include all the vacant land between a tract known as the *“Sherwood and Pennell land,” also as “lot No. 7;” which was believed to corner on a crooked sugar tree, near the old Augusta county line, lands of Samuel V. Gatewood, particularly the old place patented to Jacob Warwick, the land purchased of Rowland, known by the names of “Cherry-tree hollow” and “Tallow knob,” an entry made by William Skeen on the 29th of April, an entry made by-William H. Eloyd of the same date, a survey made for William Sharp on the 22d April, a survey made for John Hanna, David Hanna and Henry Buzzard on the 23d of April, and a survey made for David Gibson on the 24th of April, ail of the same year.

On the 22d of January 18S1, McNeel made a survej' upon his said entry, embracing within its lines one thousand four hundred and fifty acres only.

On the 2d of March 1851, McNeel filed a caveat in the Circuit court of Pocahontas, against the issuing of a grant to Herold upon his said survey, upon the ground of better right in himself to one thousand two hundred acres of the land embraced in Herold’s survey, under and by virtue of his entry of two thousand acres, and his survey thereon of one thousand four hundred and fifty acres. The caveat also assigns in detail, the various grounds upon which the caveator claimed to have better right to the said one thousand two hundred acres, all impeaching the regularity and validity on Herold’s survey.

In September 1852, the parties came to trial, and a jury was impaneled for the *138finding of the facts. They found the entry and survey of Herold, setting them out in their finding in hsec verba. They also found an entry made by him on the 7th of August I860 (after his survey and after Mc-Neel’s entry), of nine hundred and seventy acres of land, calling to begin at Adams’ corner on the top of Elk mountain, and running with his line to Mathews’ survey, and to ^'embrace all the land between said line and his own survey, adjoining the land of Porter and others. They also found McNeél’s entry, setting it out in haec verba; and they found that he had made a survey upon his said entry; but they do not set out this survey or otherwise describe it than as embraced within the lines shaded pale red on the plat accompanying the surveyor’s report made in the cause. They also found “that the defendant’s survey was made in conformity with his entry; and that said entry and survey are correctly represented by the lines” shaded green on the surveyor’s plat.

The foregoing being all the facts found by the jury, and none appearing to have been agreed by the parties, the caveator moved the court to set aside the finding, because contrary to evidence, because it did not find all the material facts proved by him, and because those which were found were too uncertain and insufficient to authorize a judgment in favor of the caveatee. But the court overruled the motion; and the caveator excepted; setting out in his bill of exceptions the evidence given on both sides at the trial. This consisted of the entries and survey before mentioned of Herold, the entry and survey of McNeel, the deed referred to from Pannell to Herold and Hanna, a grant from the commonwealth to Joseph Pennell for five thousand acres of land, an act of assembly annexing a portion of the county of Augusta to the county of Monongalia, together with parol testimony as to the locality and boundaries of the land granted to Pennell, and of that portioil conveyed to Herold and Hanna, and as to the locality of the lands claimed by Moffett, Gibson and others, called for in the entries of Herold and McNeel respectively. The court then proceeding to pronounce on the facts found by the jury, gave judgment in favor of the caveatee; and the caveator obtained an appeal to this court.

*Reynolds and Price, for the appellant.

Smith and Caperton, for the appellee.

*

Waste and Unappropriated Lands —Entry — Certainty of.—Upon the question of the certainty of *137the entry for waste and unappropriated lands, see the principal case cited in Stockton v. Morris, 39 W. Va. 441, 19 S. E. Rep. 533; Simpkins v. White, 43 W. Va. 127, 27 S. E. Rep. 361.

†

Caveat—Special Verdict—Certainty of.—In Clements v. Kyles, 13 Gratt. 485, and *note,*the cause was sent back to the lower court to have a more perfect finding of the facts upon which the rights of the parties depend, citing Cropper v. Carlton, 6 Munf. 277; *McNeel v. Herold, 11 Gratt. 309.*

LEE, J.

This is a caveat from the Circuit court of Pocahontas county, under the provisions of the statue in relation to the mode of acquiring title to waste and unappropriated lands within this commonwealth, originally introduced into our system by the act of May 1779, ch. 13, entitled “An act for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands.” Neither party has the legal title, but it is a contest of equities, both claiming under entries made with the surveyor of Pocahontas. The entry of the caveatee was made on the 23d of July 1849, that of the caveator was made on the 4th of May 1850. The caveatee, it appears made a second entry for nine hundred and seventy acres of land, under which also he claims ; but this was not made until the 2d of August 1850, after he had made a survey upon his first entry, and after the caveator had made his entry. Each party has made a survey conforming, as he claims, to his entry, and as they are found to conflict, the question is, which has the better right? Thus the validity' of the respective entries is directly and necessarily' involved, and each party has in turn assathed the validity of the entry of the other.

To constitute a valid entry, there must be a reasonable degree of certainty and precision in the description which it gives of the subject intended tobe appropriated. In the case of a grant, if the description be such that when verified by the proofs of what is found on the ground, the land can be identified, it is sufficient, and the grant can be maintained: but more is required in the case of an entry. It is not sufficient that the land can be identified by means of the proofs of the land-marks called for, which the private knowledge *of the claimant can supply; but the entry must be made with that degree of certainty' and specialty that a subsequent locator may be enabled, by the exercise of due care and reasonable diligence, to appropriate the adjacent residuum. The objects which it calls for must possess that notoriety in themselves, or must be so particularly described, that others, by' using such care and diligence, may readily find them. These principles have been repeatedly illustrated in the numerous cases which have been decided by the courts, involving their discussion. Of these I will content myself with referring to the following: Hunter v. Hall, 1 Call 206; Currie v. Martin, 3 Call 28; Miller v. Page, 6 Call 28; Moore v. Whitledge, Hardin’s R. 89; Smith v. Smith, Ib. 190; Buckner v. Feagins, 2 Bibb’s R. 138; Davis v. Davis, 2 Bibb’s R. 134; Bodley v. Taylor, 5 Cranch’s R. 191; Finley v. Williams, 9 Cranch’s R. 164; Watts v. Lindsey’s heirs, 7 Wheat. R. 158; Johnson v. Pannel’s heirs, 2 Wheat. R. 206; Matson v. Hord, 1 Wheat. R. 130; McArthur v. Browder, 4 Wheat. R. 488; Littlepage v. Fowler, 11 Wheat. R. 215; Garnett v. Jenkins, 8 Peters’ R. 75; Key v. Matson, Hardin’s R. 70.

Entries in Virginia and Kentucky, made for the purpose of acquiring title to waste and unappropriated lands, in the mode prescribed by law, usually first refer to some prominent and notorious object which serves to direct attention to the particular neighborhood in which the land is situate, and then call for some particular object or objects which shall describe it with precision. The former has been termed the “general”, or “descriptive” call, the latter the “particular” or “locative” call of the entry. Both must possess that reasonable degree *139of certainty which will put a subsequent adventurer duly upon his guard, and the locative calls must be found to be within the limits embraced by the descriptive calls, and they should *properly be consistent with the latter and with one another: Johnson v. Pannel’s heirs, 2 Wheat. R. 206; McDowell v. Peyton, 10 Wheat. R. 454: Though, in certain cases, -where all the calls in an entry cannot be satisfied, the court, for the purpose of sustaining it, will reject such as appear to be vague or repugnant, and hold to those appearing to be certain and consistent. Marshall v. Currie, 4 Cranch’s R. 172; McIver’s lessee v. Walker, 9 Cranch’s R. 173; Massie v. Watts, 6 Cranch’s R. 148; Shipp v. Miller’s heirs, 2 Wheat. R. 316; Evans v. Manson, 1 Bibb's R. 4; Patterson v. Bradford, Hardin’s R. 101; Bosworth v. Maxwell, Ibid. 205.

Where there are several distinct and independent calls in an entry, it is not required that all the objects thus called for -should be known and recognized by the public, or that they should all be described with that specialty that a subsequent locator can readily find them; but it is necessary that some one or more of the leading calls should be thus known, or so described that other persons, with due care and proper diligence, may be led to ascertain their positions, and thus to distinguish the land appropriated from the adjacent residuum. Garnett v. Jenkins, 8 Peters’ R. 75; McCraekin v. Steele, 1 Bibb’s R. 46.

The objects sometimes called for are so connected with the general history or geography of the country, or its legislation, that they will be taken notice of by the courts and deemed of general notoriety, and sufficiently identified without further proof: Such are rivers used as public highways, or thoroughfares between different parts of the country, or which are referred to in general laws and designated as boundries of the comities or other districts of country. Mountains and points *on the*same may possess this character. And an entry calling for such objects may be supported without proof of notoriety

or identity. *Such was the entry in Watts v. Lindsey’s heirs, 7 Wheat. R. 158. There the “Ohio river” and “Little Miami river” were regarded as sufficiently notorious and identified without further proof. So the notoriety of the “Lower Blue licks” was presumed. Hart v. Bodley, Hardin’s R. 98. In Speed v. Severe, 2 Bibb’s R. 131, “Salt river” was regarded as a stream sufficiently notorious to be taken notice of without proof of its course or locality. So of “Licking river," Bowman v. Melton, Ibid. 151. So the “Blue licks,” from their connection with the general history of the country were deemed notorious, and sufficiently identified without further proof. McKee v. Bodley, Ibid. 481. So of the “Kentucky river,” Winslow v. Holders’ heirs, 2 Litt. R. 34.

In other cases, the objects called for possess but a local notoriety or furnish a description of the land which must be verified and applied by means of facts to be ascertained on the spot; and the party affirming the validity of the entry in such a- case must make out in proof the necessary facts to show the identity of the land intended to be appropriated, and that the calls which it contains are such that the subsequent locator, in the exercise of proper judgment and reasonable diligence, would be enabled to distinguish it from the lands surrounding, so as to appropriate for himself the adjacent residuum.

The entries of the respective parties in this case are of the class just described; and to maintain their valid it j7, it should be shown that there were such objects to be found, as are called for, that their relative positions were such as to mark out and identify the land intended to be entered, and that they or some of them were so well known in the neighborhood as to furnish such a precise and certain description of the land that it could be found by strangers using reasonable diligence and making proper enquiry. But upon examining *the meagre finding of the jury, it will be seen that it is entirety sthent upon these most material subjects. It no where finds that there are streams known as the “Big Spring fork” and “Slaty fork” of Elk river; or what is the particular or general course of either. It does not find that there is any tract of land known as “Lot No. 7,” or as the “Sherwood and Pennell land,” its situation and boundaries. It does not find there were such lands claimed by Gatewood, as those referred to and described in the entries, nor any such as are said to be claimed by Moffett, Gibson and others, nor that there were such entries or surveys as those referred to; nor does it ascertain the land said to be embraced in the deed to Herold and David Hanna, nor that there was such a deed either in fact or by general reputation; nor does it ascertain the positions of any of the objects called for. In short, it wholly fails to find the material facts upon which, and tipon which alone, the court could safety undertake to pronounce that either entry had been made with the necessary certainty and precision.

No aid is derived from the finding that the entry and survey of Herold are correctty represented by the lines shaded green on the plat of the surveyor, and that those of McNeel are described by the lines shaded light red. The validity of the plat and report of *the*surveyors is *not*ascertained, nor are the objects intended to be represented on the plat found as part of the facts of the case. Nor indeed could they have been so found by reference to the plat, because the lands represented are laid down according to the pretensions of the parties respectively; and the plat is only referred to in the finding for the purpose of exhibiting the exterior boundaries of the surveys. Nor is the defect cured as to the entry of Herold by the finding that his survey was made in conformity with his entry; because, as we have seen, an entry *140might well *be susceptible of identification by means of a survey made by the party himself, and yet its calls might lack that certainty and precision which would be required to render it valid as against a subsequent locator. And moreover, whether a survey does conform to an entry, is a matter to be determined by the court upon the facts found, and not to be disposed of in a summary way by the jury, as in the finding in this case.

Nothing is said in the finding of the jury as to the ownership of the warrants on which the respective entries were , made; nor is it found in whose names they were issued. The numbers and quantities of land are the only items of description given. Yet a party who caveats must show a title to the warrant under which his own entry and survey were made, and if he fail to do so, his caveat will be dismissed. Currie v. Martin, 3 Call 28. In. that case, it is true the entry of the caveator Martin was made by virtue of part of two warrants issued, one in the name of one McWilliams, and the other in the name of one Goodwin; and it was not proven that they had ever been assigned to Martin. His caveat was accordingly dismissed. Whether upon a special finding of facts in a caveat case the court can infer that the caveator was the ower of the warrant under which the entry was made, where it does not appear in whose name it issued, and no other proof of ownership is offered except that the entry purports to have been made upon it, is a question not free from difficulty. In the view I take of this case, however, it is perhaps not necessary that it should be decided, and I therefore forbear the expression of any opinion upon it.

But there are still other objections to the finding of the jury. I think it is plainly obnoxious to the charge of repugnancy upon its face. Thus it finds that Herold’s . entry and survey are both correctly represented *by the lines shaded green on the plat of the surveyor; yet it ascertains that the entry is for three thousand acres, while the survey is for three thousand nine hundred and seventy acres, and thus that both quantities are embraced within and bounded by the same identical lines.

Again: The entry of Herold is dated on the 23d of July 1849, and purports to have been made by virtue of part of a warrant of three thousand five hundred and ninety acres, No. 17,826. The survey was made on the 27th of April 1850, and purports to be as to three hundred acres, by virtue of part of a warrant of one thousand acres, No. 18,216, and as to three thousand five hundred and ninetj’ acres, by virtue of a warrant of three thousand five hundred and ninety acres, No. 17,826. But it also finds that the entry of the nine hundred and seventy acres, the excess in the quantity of the survey over the original entry of three thousand acres, was not made till the 7th of August 1850, upwards of three months after the survey of the three thousand nine hundred- and seventy acres. Yet it finds that the caveatee’s survey was made in conformity with his entry.

It will be found too, upon examining the evidence given on the trial, that the finding is in one and perhaps a very material particular, not to be reconcthed with it. Her-old’s entry, as we have seen, purports to be for the same land embraced in the deed from Pennell, and thus in terms is confined to the land embraced within the boundaries of that deed. McNeel’s entry calls to adjoin a tract of land known as the “Sherwood and Pennell land” or .“Hot No. 7,” and thus is confined to the land lying outside of the boundaries of that tract. The grant for this lot No. 7 of five thousand acres, and the deed for the three thousand acres of land referred to in Herold’s entry, are given in evidence, and it distinctly appears that the latter is part *and parcel of the former, being the northeastern portion thereof. Thus the entries are shown to call for wholly different lands, and there should be no conflict between them. Yet the finding of the jury ascertains that the entry of Herold embraces much the larger part of the land entered by McNeel, the interlock being from one thousand to one thousand two hundred acres in extent.

I deem it unnecessarj- to enquire whether the finding may not be obnoxious to criticism in other respects. I think it must be apparent that the facts which it ascertains were not sufficient to enable the court to render judgment safely and understandingly upon the merits, of the case. The only alternatives were to dismiss the caveat or to set aside the finding and award a venire facias de novo. The court adopted the former; and in this, according to the modern and more liberal practice, I think it erred. As the caveator’s case may be a good one, though certainly not made out by the facts found; and as the merits of the controversy could not be presented and adjudicated upon the finding of the jury, I think it would have been right to set it aside, and to give the parties an opportunity upon another trial, of presenting the real case between them for adjudication.

I am of opinion to reverse the judgment, to set aside the finding of the jury,* and to remand the cause for a venire facias de novo.

The other judges concurred in the opinion of Hee, J.

Judgment reversed, and venire de novo awarded.