Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-08-10

fers call Tor an entHe4y 0slnct ana sepaFso Ft'o0
Il iVd
81 Il is commended by the counsel Of the plainif
ia error-that when the surveyor came actually 20
run the lines OF the Thursby entry upon the ground,
he fixed the beginning corner Of S hickory marked
I G ia the East boundary Of Mari ia acre SUR
very: and that be surveyed and marked the lana
East and South FROM that pointinstead CT East ana
south from the 800 acre tract the place designated
as the beginning in the entry, thereby making an
interference actually on the ground OF 81 oy 5SOE
poles. Aud there is proof in the record tenoilg 70
show that this is So While the other hand there
is much proof showing that the survey was MADE 4
and lines run and marked from the true point in The
East boundary Of the 800 acre survey. Ihere IS /
also proof tending TO show that the Thursby entry
was crowded South and West, so as to produce the
interference, By the Wheston Tisdale survey, ana
succession Of older claimants lying North and last
Of it and by Reelfoot lake
Oh the other hand there is also much pYoot that
this is not So and that even if forced rom It's orig
iual position By these claims, or by the Lake-the
Thursby entry could have been satisfied by going
South, and interfered with no one
In this state Of the case it becomes necessary to
examine the charge Of his Honor the Circuit Judge,
to the Jury, which vas follows. That the grants
10 Kerr and Tbursby covered the land, which IVES
actually surveyed and marked of for them on the
ground by the surveyor or preparatory 10 the lss9
anoe of the grants utifthe Kerr surrey was MADE
before the Thursby survey, and If said grants iD~
and Topped upon each other and the Thursby
survey was not maie-beginning 81 the point called
for as the beginning IN the entry and The Kerr entry
was surveyed at the place and beginning at the point
mentioned in tho entry, conforming TO the entry
and the adjoining entries-then and IN that case'
Kerr would have the better title to the interference,
although Thursby had the oldsr entry and older
grant aud that plaintiffs Wopld hs7e a right TO re
cover.
The defendants asked the Court to charge the
jury, that If, in surveying the fnursby entry TIE
surveyor was compelled o. older claims Occupant
settlements existing at the ime-or BY the Lake
10 DEPART from the calls Of the entry he bad right
to run the Thursby tract upon the land IN dispute,
and that the Thursby grant would hold the land IN
preference TO the younger entry aud grant OIL herr
Also that if, in surveying all the Older entries OF
! McLemore & Vaulx, MoLemoTe Lyle, MeLemore
! & Hopkins j. CurTieT & Co Edward Thurshy and
! Edward Harris--they could not all be surveyed at
The places called for in the entries without conflict
! ing with older claims, natural objects-thon and
in that case--he surveyor had right to run them
or any one Of them, upon the lands contained IN
Kerr's younger entry, and grant issued upon such
survey would give the grantee the better title TO such
land Which the Court refused to do: but charged
as above
We are now to see whether there lie any available
error in this action of the Circuit Judge-in ohaFg
inc as he did and IN refusing 20 charge request
ed Il is maintained snd argued here BY the eoun-
sci Of the plaintiffs in error, that there's
It is well settled that actual survey is evidence
| of the land granted although the calls Of the
grant do not cover any part Of the land. Parsons
We Rovendton, Hogan, 37S, Govner Dickson vs.
| Norris Lessee, l Yer 81. These cases and others
cited by the counesl of the plaintiffs in error, prov
ed upon the principle that the survey, as actually
! made covers the land intended TO be appTop Tated
and that the grant was, by mistake, so filled up and
| executed as not TO embrace the land. In Rovend>
toms case, he had made entry of the land and
the survey conformed to the entry, and he took pos
session and claimed accordingly, But by mistake,
either in the surveyor, or Secretary who filed up
the grant, the courses we're reversed, so that the
grant did not cover any Of the land surveyd. Par
sons afterward entered the land and obtained q
grant and sued RoVendton in ejeotment and the
Court determined that the mistake of the veyor,
or Secretary who filed up the grant should not pre-
iudice Rovendton who was well entitled to the lands
intended to be granted and which had been survey
ed And if the enterer depart from his entry and
cause other Incorporated lands not within its
sphere to be surveyed and granted, or if the sur
veyor himself does so with the sanction Of the en-
terer-the grant will communicate valid title ia
the land surveyed.
But it cannot be deduced from these cases OF
these principles that the older enterer because Of
his entry or the surveyor because Of his official Pc
sition-can be allowed to depart from the entry tC
other lands not within its sphere already legally
| appropriated by younger enterer. He has right
to the quantity of land called for in his entry unless
he be restricted by older claims, navigable water
courses, or the Calls OF MS anu ~ ID AhS
duty of a subsequent enterer in making his entry
to examine the cells of the prior entry and take cart
| that he does not encroach upon it. This tht
law supposes he does. II the entry be what tht
Law denominates U0glfs il IL void because 1t ideni
es No particular piece Of land and furnishes no
tioe 10 a subsequent enterer that the land in ques
ton had been previously appropriated; audit Il
therefore not in the way Of his entry. But II 1t o
what the law terms special entry that is, desg
mates particular piece Of land which is intended
| to be appropriated by calls for objects which ar
notorOus-or become sO-before the inception OF tn
conflicting olaim-then tits held TO notice Us face
10 subsequent enterer that the land in question
had been previously entered These principles
seems TO me are inconsistent with the notion tina
the older enterer-because he may be deprived o
his land by the interference Of better titles,
vigable water cOurse-csn be allowed TO take othe
lands within the scope of his entry and ALREADY
appropriated by subsequent enterer. In such
case if his l4nds be lost, his remedy is by resor
to other vacant lands and not to those Of the yOun
= ger enteTer.
Il may be true that under the Act of 1919, a
we'll as the law prior TO that time, considerable lat
f itude, in making the survey is secured and tina
the older enterer is obliged to point ou in his en-
d try the mann in which his survey shall be made
60 as to give notice to subsequent enteFers- Ba
still he nay do this He may, in fact, surv the lan'
before be makes his entry, and in the calls Of tn
entry designate the land by metes and bounds ant
other objects-with as much certainty as any sur
VeV could Aud If he do this y he not restricted b,
the calls of his location. And eau he, or the sur
veyor depart from them to the prejudice Of youn
ger enterer of the adjacent lands? We think not
White vs.. Crockett & Drake, 8 Hogan, 234-236
Caldwell VS. Watson, 6 Hum, 49S. Floy Z. Tenn
I College, 2 Sneed $50.
We have seen that Thursby's entry was not read
and is not in the record We cannot therefore judg
of its legal effect 1t may have been restrictive
in its calls a. to confne the surveyor to the Liant
East of the Mari 800 survey, and to have bee
in fact prohibition upon his going elsewhere; or
t may have been UagHs and void. In either event
n the Judges charge was right Such an entry cou
] furnish no authority to the surveyor to encrose
q upon Kerr's entry. If the contrary is claimed,
was incumbent on the plaintiffs in to show tn
Y fact by producing Thurshy's entry in the rec I'd
This Court will presume the Circuit Judge TO hsv
= acted correctly and will not reverse the judgmen
o if It can suppose q state Of facts that would hsv
entitled the party TO q verdict similar to the on
rendered The settled rule Of this Court is 10 al
a firm any judgment not seen to be erroneous; and
is not competent to set aside judgment for an ab
stract proposition delivered by the Jddge, hoWeve
erroneous: and unless the evidence be stated 8
to raise the question: it is surely abstract 1t vii
not do to say the Judgment is possibly erroneous
| that it does not appear to be right.
I Il must be affirmed unless it appear wrong Pick
r EFT VS. Pickett, 8 Der. g. Thomas VS.. Alexander,
n Der and Bait, S85. State Hardin, do. 407.-
& McGorval vs. Word. Cooke, 403-405
J. But, 2-The fact that the plaintiffs in error d
not read or exhibit Thursbys entry is fatal to hei
a. Il 4,