Jackman v. Merewether, Lincoln, 1790

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JOHN JACKMAN v. THE HEIRS OF GEORGE MEREWETHER.

SUPREME COURT FOR THE DISTRICT OF KENTUCKY

1 Ky. 32; 1790 Ky. LEXIS 1; 1 Hughes 32

June, 1790, Decided

PRIOR HISTORY:  [**1]  The plaintiff on the 5th day of December, 1785, entered the following caveat, to-wit:

"Let no grant issue to the heirs of George Merewether, deceased, as assignee of Julius Sanders, on a survey made on part of a preemption warrant, containing 250 acres of land, lying in the county of Lincoln, and chiefly on the waters of Boone's Mill-seat creek, adjoining Henry Pawling's settlement of 400 acres, on the south corner, lying on the head waters of said Boone's creek, John Jackman claiming so much of the said survey as falls within the lines of said Jackman's survey of 400 acres, made on a certificate obtained before the commissioners."

John Jackman, on the 16th day of February, in the year 1782, obtained from the commissioners for the district of Kentucky, the following certificate, to-wit:

"John Jackman, by Col. Logan, this day claimed a settlement and pre-emption to a tract of land in the district of Kentucky, on account of raising a crop of corn in the country, in the year 1776, lying on Elkhorn creek, a branch of Dick's river, on the north side thereof, adjoining Bartholomew Fenton on the east, to include his improvement. Satisfactory proof being made to the court, they [**2]  are of opinion, that the said Jackman has a right to a settlement of 400 acres of land, to include the said improvement, and the preemption of 1000 acres adjoining, and that a certificate issue accordingly."

And on the 26th day of February, in the year 1780, entered his certificate for settlement with the county surveyor, in the following words, to-wit:

"John Jackman enters 400 acres, by virtue of a certificate, etc., lying on Elkhorn creek, a branch of Dick's river, on the north side thereof, adjoining Bartholomew Fenton's land on the east, to include his improvement."

Julius Sanders, on the 18th day of October, 1779, obtained from the commissioners for the district of Kentucky, the following certificate, to-wit:

"Julius Sanders this day appeared and claimed a right to a settlement and pre-emption, to a tract of land lying on the head of a creek called Boone's Mill creek, about four miles from Dick's river, about twelve miles from this place, by making corn on the said land, and improving the same in the year 1776. Satisfactory proof being made to the court, they are of opinion that the said Sanders has a right to a settlement of 400 acres of land, including the [**3]  said settlement, and the pre-emption of 1000 acres adjoining, and that a certificate issue for the same."

And having assigned his certificate for settlement, Henry Pawling on the 3d day of November, in the year 1779, entered the same with the county surveyor, in the following words, to-wit:

"Henry Pawling, assignee of Julius Sanders, enters 400 acres, by virtue of a certificate for settlement, on the head of a creek called Boone's Mill creek, about four miles from Dick's river, and about twelve miles from St. Asaph's."

And on the 18th day of September, in the year 1781, George Merewether entered the pre-emption warrant in the following words, to-wit:

"George Merewether, assignee, etc., enters 1000 acres upon a pre-emption warrant, No. 1060, lying on the waters of Boone's Mill creek, to adjoin Pawling's settlement, as assignee of Julius Sanders, all around the said settlement; notwithstanding, the said Merewether is not to be confined to the forementioned waters alone, unless he sees cause to run it so."

The annexed connected plat, No. 13, was returned in this cause, of which the following is an explanation:

[SEE PLAT NO. 13 IN ORIGINAL]

1 2 3 4 [**4]  5 6, John Jackman's settlement survey of 400 acres. J, John Jackman's improvement. 4 5 7 8 9 10 11 12 13, John Jackman's pre-emption survey of 730 acres. 14 15 16 17 18, ditto, of 160 acres. A C, Andrew Cowan's cabin. The black lines around Cowan's cabin represent the settlement of Julius Sanders, entered and surveyed for Henry Pawling, and the pre-emption entered for George Merewether, and surveyed in four surveys. W, John Wilson's improvement, above the fork of White Oak, formerly called Elkhorn creek, waters of Dick's river, which is the large water course. A B C D, Reynolds' settlement, assignee of Bartholomew Fenton, according to survey. A E F G, pre-emption do. do.

DISPOSITION: Judgment for the plaintiff with costs. 

OPINION

 [*35]  BY THE COURT.--The plaintiff having run his settlement lines in as reasonable manner as circumstances would admit of, and as we can see no other manner in which he could have laid off his settlement, so as to favor the defendant's claim.

Judgment for the plaintiff with costs.