MASSIE V. WATTS, 10 U. S. 148 (1810)

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U.S. Supreme Court

Massie v. Watts, 10 U.S. 6 Cranch 148 148 (1810)

Massie v. Watts

10 U.S. (6 Cranch) 148


The practice in Kentucky to call a jury to ascertain the facts in chancery causes is incorrect.

A suit in chancery by one who has the prior equity against him who has the eldest patent is in its nature local, and if it be a mere question of title, must be tried in the district where the land lies. But if it be a case of contract or trust or fraud, it is to be tried in the district where the defendant may be found.

If, by any reasonable construction of an entry, it can be supported, the court will support it.

When a given quantity of land is to be laid off on a given base, it shall be included within four lines forming a square as nearly as may be, unless the form be repugnant to the entry.

If the calls of an entry do not fully describe the land, but furnish enough to enable the court to complete the location by the application of certain principles, it will complete it.

If a location have certain material calls sufficient to support it and to describe the land, other calls less material and incompatible with the essential calls of the entry may be discarded. The rectangular figure is to be preserved if possible.

If an agent locate land for himself which he ought to locate for his principal, he is in equity a trustee for his principal.

This was an appeal from the decree of the Circuit Court of the United States for the District of Kentucky in a suit in equity brought by Watts, a citizen of Virginia, against Massie, a citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the State of Ohio, the defendant having obtained the legal title with notice of the plaintiff's equitable title.

The bill stated that the defendant Massie (the appellant) had contracted with a certain Ferdinand Oneal to locate and survey for him a military warrant for 4,000 acres in his name (which the plaintiff afterwards purchased for a valuable consideration), and to receive for his services in locating and surveying the same, the sum of �50 which the plaintiff paid him. That the defendant located the said warrant with the proper surveyor, and being himself a surveyor, he fraudulently made a survey purporting to be a survey of part of the entry, but variant from the same and contrary to law, whereby the survey was entirely removed from the land entered with the surveyor for the fraudulent purpose of giving way to a claim of the defendant's which he surveyed on the land entered for the plaintiff, whereby the plaintiff lost the land, and the defendant obtained the legal title. That the land adjoins the Town of Chillicothe, and is worth $15 an acre. The bill prays that the defendant may be compelled to convey the

Page 10 U. S. 149

land to the plaintiff, or if that is not in his power, that he make compensation in damages.

The defendant, by his answer, denied that he contracted with the plaintiff to locate and survey the warrant in the name of Oneal, but admits that in 1787 he was requested by W. Ellzey to locate the warrant for Oneal; that Ellzey informed him he was not authorized to make any special contract with the defendant for his services, but he had no doubt, if he did the business, he would receive the customary compensation, which was �12 10s. per 1,000 acres or one-third of the land.

He admits that he made the entry, and that the plaintiff has paid him the �50. But he denies that he made the survey improperly or with a fraudulent intention. He says that in the year 1793, as a deputy surveyor, he surveyed the land on the Scioto on which the claim of Oneal depended, but not wishing to take upon himself the construction of Oneal's entry, he merely meandered the river, and referred the question to the principal surveyor, by whose directions he made the survey for Oneal in 1796, and without any instructions from Oneal or any agent for him. That when the entry was made, the country had been but recently explored, and none of the locators knew by survey the meanders of the Scioto. He does not admit that the entry has been surveyed contrary to location, but he surveyed it as he would have surveyed it for himself.

He admits he made an entry for himself and intended to appropriate the vacant land, but it was not by any procurement of his that his patent was prior to Oneal's. That the plaintiff did not become wholly interested in the claim until long after the survey was made.

After the defendant's answer came in, the plaintiff amended his bill by making Anderson (the principal surveyor) a defendant, and charged that if the survey for Oneal was made by the directions of Anderson, as alleged by the defendant Massie, it was with a fraudulent design on the part of Anderson to appropriate

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to himself the land described in Oneal's entry, and that if he had no design, he was still responsible for the consequences of the illegal survey.

Anderson, by his answer, denies all fraud and most positively denies that he gave Massie any instructions to make the survey, as falsely stated in the bill. That the survey was made of 530 acres, in part of the entry, which survey was returned to his (Anderson's) office, and which he did not record for about the term of one year from the time he received it, doubting whether the survey had been properly made, but after a critical examination of the subject he concluded that it was not improperly made and recorded it.

The plaintiff amended his bill again by charging that the defendant Massie was the owner of Powell's entry, and had surveyed and obtained a grant therefor, and calling upon him to answer when he became the purchaser of Powell's right.

To this Massie answered that after surveying Oneal's entry in the spring 1797, he purchased Robert Powell's survey, before which time he had no interest in the land, and has sold the whole of it, but made a conveyance of only a part.

There had been certain facts found in the cause by a jury according to a practice heretofore adopted in chancery suits in the courts of Kentucky, but the court ordered "that the facts found by the jury should be set aside."

The following opinion of judge Innis (judge Todd being absent) states the facts of the case so fully that nothing need be added in stating the case.

"The complainant having acquired the equitable right to certain lands conferred on Ferdinand Oneal by the State of Virginia as a bounty for military services performed by him as an officer during the Revolutionary War, has instituted this suit with a double aspect, first to recover one thousand acres of land

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which had been entered for Oneal on the Scioto River upon a suggestion that the defendant Massie, who was the locator, had wrongfully deprived him of the land by surveying Robert Powell's entry so as to cover part of Oneal's land, and by a subsequent entry and survey of his own, hath taken the balance. Secondly, if the complainant shall establish his right to the land in contest and cannot obtain a conveyance therefor, that the decree may be for the value thereof in money. It appears from the pleadings in the cause that the defendant Massie has purchased Powell's land, and that he has appropriated, by entry and survey, the adjoining land. The three following entries were made upon the Scioto River adjoining each other."

" No. 480. 1787. August 13, Major Thomas Massie enters 1,400 acres of land beginning at the junction of Paint Creek with the Scioto, running up the Scioto 520 poles when reduced to a straight line, thence off at right angles from the general course of the river so far that a line parallel thereto will include the quantity."

" No. 503. Captain Robert Powell enters one thousand acres of land beginning at the upper corner on the Scioto of Major Thomas Massie's entry, No. 480, running up the river 520 poles when reduced to a straight line, thence from the beginning, with Massie's line so far that a line parallel to the general course of the river shall include the quantity."

" No. 509. Captain Ferdinand Oneal enters one thousand acres beginning at the upper corner on the Scioto of Robert Powell's entry, No. 503, running up the river 520 poles when reduced to a straight line, and from the beginning with Powell's line so far that a line parallel with the general course of the river shall include the quantity."

"Surveys have been made upon the entries of Thomas Massie and Robert Powell, so as to cover almost the whole base of 1,560 poles, the space which was allotted for the three claims on the river, and 530 acres of land have been surveyed for Oneal, by the defendant Massie in part of his entry, which it is impossible upon any construction he can

Page 10 U. S. 152

hold. To form a correct opinion in this case, the several entries of Massie, Powell, and Oneal must be brought into one view, and, as far as it is possible, consistent with the entries, to ascertain the object and intention of the locator. It is evident from the manner in which these entries are worded that the locator had no doubt in his mind at the time the entries were made of having given that space which would enable him to secure, by legal surveys, the quantity of land located for each person. It becomes, then, the duty of the court to consider the case with a reference to this object. No difficulty arises as to the manner in which the entry of Thomas Massie ought to be surveyed, the calls of his entry being express and positive. His entry ought to have been surveyed in the following manner: to begin, as he has done, at the junction of Paint Creek, and the Scioto, and then to run up the river so far as will ascertain the termination of the 520 poles called for on the river, when reduced to a straight line. This will reduce his base to a point below the first flooded land represented in the connected plat, above the mouth of Paint Creek, thence he is to run out at right angles with the general course of the river. The unexpected bends in the Scioto River have induced such a construction to be placed on the entries of Powell and Oneal by the defendant Massie that, in executing the surveys of Thomas Massie and Powell, he considered Oneal as being excluded from obtaining any part of the land upon the base of 1,560 poles, the space allotted for three entries."

"The contest in this case, in consequence of the manner which has been pursued in making Massie's and Powell's surveys, rests principally upon the construction which is to be given to Powell's and Oneal's entries, and as the latter is dependent on the former, equity requires that if it be possible to secure to each his portion of land agreeably to their entries, it ought to be so decided, provided it can be done consistently with the spirit of the entries, and the real intention of the locator."

"From an attentive consideration of the entries, the

Page 10 U. S. 153

object of the locator was evidently to give to each of the proprietors of the warrants an equal base on the river, and make it the ruling principle in shaping the surveys. It only remains, then, to be considered whether the words in the entries will bear such a construction as to effectuate the object and secure the lands to Powell and Oneal which the locator intended at the time he made the entries."

"Powell's first call is to run up the River Scioto, and the description given of the land contemplated to be covered by the entry is that portion which shall lie within a line parallel to the general course of the river. From a view of the Scioto River, as laid down in the connected plat, and the shape which Thomas Massie's land will assume when run out agreeably to his entry, it becomes necessary, in order to give Powell the land parallel to the general course of the river, to lay it off by commencing the survey on the river at the extremity of the 520 poles above Massie, and thence to run out at right angles to the general course of the river so far that a parallel line to the river, extending to Massie's back line and binding on Massie's lines, will include his one thousand acres. Reverse this mode of surveying Powell's entry, and begin at Massie's upper corner on the river and run out with Massie's line, it will make Massie's line the governing principle of the survey, and not the river, which construction will be contrary to the true meaning expressed in the entry, the intention of the locator, and place the survey on the land of Oneal, whose interest, as a subsequent locator, is equally entitled to protection with that of the prior."

"The rule adopted in construing this entry must justify the manner of executing a survey agreeably thereto by running five lines instead of four to circumscribe the land. This proceeds from an accidental circumstance occasioned by the great bend immediately above the mouth of Paint Creek, which renders it necessary to comply with the governing principle in the entry for the land to be 'parallel to the general course of the river.' By thus executing Powell's survey, a portion of land will remain on the river and parallel thereto

Page 10 U. S. 154

sufficient to satisfy Oneal, the calls of whose entry are similar to Powell's calling for him as he does for Massie."

"Oneal's survey ought therefore to have been executed in the same manner as it is now decided. Powell's ought to have been made by beginning at the termination of 520 poles on the river, and thence to run off at right angles from that point."

"Having decided the manner in which the entries of Massie, Powell, and Oneal ought to have been surveyed, it remains yet to say what is the situation of the survey for 530 acres of land made for Oneal and placed on the record book of the surveyor. To make this act obligatory on the party, it was necessary that all the acts done should have been performed or approved by Oneal himself or some one of his assignees, or by some agent authorized for that purpose. There is no evidence in the cause to this effect: the placing the survey on the surveyor's book is therefore an unauthorized and void act."

"In the case of Wilson v. Mason in the late district court, the court decided that a survey once recorded was not afterwards in the power or control of the party. This opinion was predicated on two facts found in that cause, that William Mason was the agent of the defendant, and approved of what had been done by registering the surveys of Mason although cautioned of his danger."

"Upon this view of the case, the court is of opinion that the complainant recover of the defendant one thousand acres of land, to be laid off agreeably to the mode pointed out as the proper manner for surveying Oneal's entry."

"That upon the defendant Massie's conveying the said one thousand acres of land to the complainant, he, the complainant, shall assign to the said defendant all his right in and to one thousand acres of the warrant issued to the said Oneal. "

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"So far as this suit relates to the defendant Anderson, it is decreed and ordered that the bill be dismissed as to him with costs, the court being of opinion he was improperly made a party. It is therefore considered by the court that the defendant Anderson recover of the complainant his costs by him in this behalf expended."

"And afterwards, at the same term, the following order was made herein. The court in pursuance of the opinion and decree delivered in this cause on the eighth day of this month (December) doth order that the surveyor of Ross County do go on the land in controversy and lay off the same as follows: Thomas Massie's entry by beginning at the mouth of Paint Creek, thence up the Scioto so far as will amount to 520 poles when reduced to a straight line, and from each end of this base at right angles from the general course so far that a line parallel with that general course will produce the quantity of fourteen hundred acres. Robert Powell's entry by beginning at the upper corner of Thomas Massie's entry, that is, 520 poles from the mouth of Paint Creek, thence up the river so far as will amount to 520 poles when reduced to a straight line, and from the end of this base line, a line is to be run at right angles to the general course of that portion of the river which is occupied by the base line and from the beginning with the lines of Thomas Massie -- that is, his second and third lines -- so far that a line parallel to the general course of this base line will produce the quantity of one thousand acres. Ferdinand Oneal's entry by beginning at the upper corner of Robert Powell's entry when laid off as aforesaid, thence up the Scioto so far as will amount to 520 poles when reduced to a straight line, and from the end of this base line a line is to be run at right angles from the general course of that portion of the river which is occupied by the base line, and from the beginning with the second and third lines of Powell so far that a line parallel to the general course of the base line will produce the quantity of one thousand acres."

"And the court doth further order that the said surveyor

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do make and bound the said survey of Oneal when laid off as aforesaid, and make report of the metes and bounds and his proceedings herein to the next court."

At May term, 1808, the surveyor having made his report, a final decree was entered in conformity with the principles laid down in the interlocutory order, from which the defendant appealed.

Page 10 U. S. 157

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