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CROGHAN'S LESSEE V. NELSON, 44 U. S. 187 (1845)

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U.S. Supreme Court

Croghan's Lessee v. Nelson, 44 U.S. 3 How. 187 187 (1845)

Croghan's Lessee v. Nelson

44 U.S. (3 How.) 187

Syllabus

In making an entry of land, where mistakes occur which are occasioned by the impracticability of ascertaining the relative positions of the objects called for, the court will correct those mistakes so as to carry out the intentions of the locator.

The case was this:

On 16 August, 1784, William Croghan, under whom the plaintiff claimed title, made the following entry:

"William Croghan, assignee, enters 1,000 acres of land, part of a military warrant, No. 2023, beginning at a fork of Mayfield Creek, about two miles by water above Fort Jefferson, where a branch, occasioned by the high waters from the Mississippi, runs out of said creek, and at high water empties into the river at the upper end of the iron banks, from said beginning 500 poles, when reduced to a straight line, and then off from the branch towards [the] Mississippi on a line parallel to Mayfield Creek, until a line from the extremity of said line, parallel with the first line, will strike Mayfield Creek, to include the quantity."

On 29 November, 1826, a patent was issued to Croghan by the Governor of Kentucky, which described the land as follows:

"Beginning at a fork of Mayfield Creek, occasioned by high water from the Mississippi River, and which creek or bayou empties into the Mississippi at the upper end of the iron banks, on a walnut, sweet gum, and ash standing on the west bank of the creek; running thence down the bayou or branch aforesaid with the meanders thereof, S. 18 W. 134 poles, S. 36 W. 200 poles, S. 48 W. 72 poles, S. 18 W. 14 poles, S. 18 W. 54 poles, S. 30 W. 120 poles; thence S. 110 poles, to two ash trees, a hackberry, and red bud on the west bank of the bayou; thence N. 75 W. 206 poles, to an elm, a sycamore, and box elder on the bank of the Mississippi River; thence up the same, with its meanders, and binding on it at low water mark, N. &c., to a walnut and two cotton wood trees at the mouth of Mayfield Creek; thence up the creek, with the several meanders thereof, and binding on the same at low water mark &c., to the beginning."

In 1830, Nelson took out a patent for the fractional northwest quarter of section 32 &c., containing 103 acres.

The whole dispute being one of location, it is impossible to understand the opinion of the court without a map or diagram. chanroblesvirtualawlibrary

Page 44 U. S. 188

image:a

A, B, C, D, is the survey made for Croghan. A being the beginning station, and D the mouth of Mayfield Creek. The defendant contended that the plaintiff's line should run from B to E, and from E to D, in which case it is manifest that it would not include chanroblesvirtualawlibrary

Page 44 U. S. 189

the land granted to Nelson, the line B E being parallel to a line drawn from A to D.

Upon the trial, the counsel for the defendants asked the court to instruct the jury, that

"If they believed from the evidence that the course of Mayfield Creek, from A to D, is correctly laid down, then the line from B towards the Mississippi River should be run parallel to that to conform to the entry, and if, in running that parallel line, they shall believe from the evidence that the improvement of the defendants is left out, they ought to find for the defendants."

But the court was divided in opinion on the point, whether the second line called for in the entry should run from B to E, or whether the line from B to C should be taken, and recognized as the true and proper line, it being the line on which the patent was founded. One judge being of opinion, that for all the land south and west of a line from B to E the patent was void, and the other judge being of a contrary opinion.

Upon this point, the case came up. chanroblesvirtualawlibrary

Page 44 U. S. 190





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