not entitled to relief against defendant unless the latter is claiming land owned by him; and it cannot be said from this record that defendant is so doing, unless it shows that some part of the portion of the Cawood patent which he is claiming is within that portion of the Ledford patent located according to the second hypothesis outside of senior patents. This it does not show, save so far as the opinion of the witness Will Ward Duffield is concerned. He has expressed the opinion that there are from 5,000 to 7,000 acres of the Cawood patent not covered by senior patents, and that about one-half of this is within the Ledford patent outside of senior patents. If so, then defendant is claiming 2,500 to 3,500 acres of the Ledford patent owned by complainant. Possibly this evidence is not admissible. Possibly, in view of the difficulty of otherwise proving the fact, it ought to be admitted. But, even if it is inadmissible, I do not think that complainant's bill should be dismissed for want of evidence of the fact. It could hardly be proved without the assistance of this court. Had complainant applied for such assistance heretofore, it would have been denied. It should not have been rendered in advance of a determination of a location of the patent. Otherwise, much labor and expense would have been incurred to no purpose.

În view, however, of this position of defendant, if it is adhered to, I will send the case to a commission to ascertain and report what the fact is, and enter no decree until it is determined. If defendant indicates a waiver of the position, it will not be so referred.

BRAMBLET v. DAVIS.

(Circuit Court of Appeals, Sixth Circuit. December 20, 1905.)

No. 1,421.

1. BOUNDARIES-LOCATION FROM DESCRIPTION IN PATENT-EFFECT OF EXTENSION BEYOND STATE LINE.

The fact that the boundaries of a tract of land as given in a state patent, based on a survey made at the instance of the patentee, extend beyond the state line, affords no ground for the relocation of the tract by the courts, so as to place it all within the state. The true rule requires them to ascertain and locate that portion of the boundary which lies within the state by the usual methods, running the lines backwards and in reverse order from known corners according to the calls of the patent where necessary, and to exclude from the tract that portion which lies without the state by taking the state line as the boundary between the points where such line is crossed by the lines of the survey.

2. PUBLIC LANDS-PURCHASER OF STATE LANDS-DEFICIENCY IN QUANTITY.

A purchaser of state lands, who selects the land and has a "call" survey of the same made by protraction without actually running the lines, and applies for and obtains a patent in accordance with such survey, takes the risk of overlaps upon prior grants and of loss by reason of the extension of the boundaries, if run in accordance with the calls of the survey and patent across the line of the state; and a grantee of such purchaser takes no greater rights in those respects than his grantor had.

Appeal from the Circuit Court of the United States for the Eastern District of Kentucky.

Frank Chinn and Wm. Ayres, for appellant.
Helm Bruce and W. O. Harris, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. This was a suit to quiet the title to land in Harlan county, Ky. The complainant, Charles Henry Davis, trustee, claims title under a patent issued September 25, 1845, on a survey dated March 3, 1845. The defendant, George W. Bramblet, claims under a junior patent issued January 28, 1846, on a survey dated March 6, 1845. The first patent, calling for 86,000 acres of land, was issued to Ledford, Skidmore, and Smith, and will be referred to as the Ledford patent. The second, calling for 9,500 acres, was issued to Moses Cawood. The controversy grows out of an alleged conflict in the boundaries of the two patents, and involves the true location of the Ledford patent; that of the Cawood patent being undisputed. Located in one way, the Ledford patent embraces the entire land called for by the Cawood patent. Located in another, the conflict is but slight. The description of the land granted by the Ledford patent is as follows:

"A certain tract or parcel of land, containing 86,000 acres, by survey, bearing date the third day of March, 1845, lying and being in the county of Harlan, and bounded as followeth, to wit: Beginning on Crank's creek, on two beeches and two sugar trees, beginning corner to said Smith's 1,500-acre survey; thence S. 70° W. 664 poles, to three beeches, beginning corner to Smith's 600-acre survey; thence S. 280 W. 400 poles, to a stake on the top of Cumberland Mountain; then S. 60o W. 8,320 poles, to a stake near Cumberland Gap; thence N. 15° E. 3,200 poles, to a stake; thence N. 55° E. 8,820 poles, to a stake; thence S. 5° W. 3,150 poles, to the beginning, with its appurten ances."

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The order of the Harlan county court for the survey was made March 3, 1845, and on the same day the certificate of survey, on which the patent was issued, was made. This survey describes the property precisely as it is described in the patent. Accompanying it was a plat in the following form:

Laid out by the courses and distances given above, the boundary of the survey closes, defining a tract of land of about the shape shown above, running in its longest direction from northeast to southwest, the southeast side of which (made up of the first, second, and third lines) is approximately 30 miles long, the opposite or northwest side. (bounded by the fifth line) 271⁄2 miles long, and the ends (being the fourth and sixth lines about 10 miles long. It contains in round numbers 300 square miles, or 192,000 acres, over 100,000 acres more than called for.

Coming to the location of the patent, it will be observed that the first and second lines call for known natural objects as corners the first corner being "on Crank's creek, on two beeches and two sugar trees, beginning corner to said Smith's 1,500-acre survey"; the second corner, "three beeches, beginning corner to Smith's 600-acre survey" and the third corner, "a stake on the top of Cumberland Mountain." By their use, the first line, with a slightly changed course, was found to be 911.5 poles, instead of 664 poles, in length, and the second line 463.4 poles, instead of 400 poles, in length. The increase in length of these two lines, amounting to 310.7 poles, and the slight change in their bearing, would necessarily produce a slight variation at the point of closure, but so slight in so great a perimeter (almost 80 miles in length) that the survey, with the first and second lines thus located, may be said practically to close. The first and second lines, thus defined by natural objects, are the only ones about whose location there is no dispute. The second ends at "a stake on the top of Cumberland Mountain." The state line between Kentucky and Virginia, in this locality, runs along the top or highest point of Cumberland Mountain, so that

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the third corner is on the boundary which marks the limit of the territorial jurisdiction of Kentucky.

Right here is where the difficulty in locating the patent begins, for the third line, which is defined as "then S. 60° W. 8,320 poles, to a stake near Cumberland Gap," if run from the third corner by this course and distance, crosses the state line, passes through the wedgelike point of Virginia between Kentucky and Tennessee, and ends in Tennessee about four miles southeast of Cumberland Gap. Taking the point thus fixed by course and distance as the fourth corner, and running the remaining lines (the fourth, fifth, and sixth) by the courses. and distances given, the boundary practically closes. But because Kentucky had no authority to run its survey into other states, and no power to issue a patent for land located in other states, doubt was naturally thrown about the true location of the patent, and the matter has been before the courts, both state and federal, a number of times.

The first suit was brought by Maria Mott Davis, the grandmother of the complainant, and then the owner of the Ledford patent, against W. C. Farmer and others, to quiet her title to a tract of 12,900 acres claimed under a junior patent. This suit was instituted in the Circuit Court of the United States, and was decided by Judge Barr in 1894. 141 Fed. 703. He held that the fourth corner of the patent should be located at or in Cumberland Gap, and the third line should run with the state line from the third to the fourth corner thus ascertained. A few years later, a similar suit was brought by the same person in the same court to quiet her title under the Ledford patent against one Hinckley, claiming 67,000 acres under a junior patent. This suit was decided by Judge Evans, who followed Judge Barr in fixing the fourth corner at or in Cumberland Gap. 141 Fed. 708. Taking the fourth corner as being at or in Cumberland Gap, both Judge Barr and Judge Evans ran the fourth and fifth lines according to their courses and distances, and from the sixth corner, thus ascertained, ran a line to the beginning, thus closing the survey. As a result, the sixth or closing line, instead of running S. 5° W. 3,150 poles, ran S. 5° E. 4,560 poles, the course being changed 10 degrees, and the length increased 1,410 poles, or nearly 5 miles. This is the location contended for by the complainant below.

While the present case was pending in the court below, a suit involving the location of this patent was begun in the state court and decided by the Court of Appeals of Kentucky. This was the case of Creech v. Johnson, decided October 14, 1903, and reported in 116 Ky. 441, 76 S. W. 185. The highest court of Kentucky there held that, having located the first and second lines, about which there seemed to be no dispute, and thus reached the state line at the third corner, the way to deal with the difficulty presented was to go back to the beginning, reverse the courses and run the lines according to the calls of the patent, until the state line should again be reached. From this point, where the fourth line reversed should intersect the state line, run with the state line to the third corner, itself on the state line. The location thus fixed as compared with that made by Judges Barr and Evans, is roughly shown by a diagram printed in the opinion. 116 Ky. 447, 76 S. W. 186.

The court below had before it all of the opinions when it rendered its decision, but concurred in none of them. It declined to follow the decision of the Court of Appeals of Kentucky as one in a matter of local law, and in a most learned and elaborate opinion determined on a location of its own, different from any one of the others. Having run the first and second lines, as practically agreed upon, to the top of Cumberland Mountain, being the state line, it ran the third line, rejecting its course, with the state line, the distance called for in the patent, namely, 8,320 poles. Here it stopped and located the fourth corner, being a point 720.4 poles (about two and one-fifth miles) from Cumberland Gap. From the fourth corner thus fixed it ran the fourth line according to the course and distance given in the patent, thus fixing the fifth corner. It then went back to the beginning corner, reversed the course of the last line and ran it the distance of the call, thus fixing the sixth corner. It then closed the survey by running a line from the fifth corner thus fixed to the sixth corner thus fixed, without regard to either the course or distance of the patent; the result being that the fifth line, instead of running north 55° F. 8,320 poles, is made to run north 67.54° E. 8,156 poles. The locations made by the different courts are shown in the following map: