But in the whole courfe of decifions in Kentucky a furvey has never been confidered as giving a right. The adjudications for eighteen years do not fhew the date of a furvey to be material as to notice, nor has it ever been fo confidered. There has never been a title fupported upon a furvey without an entry fince the year 1779 To overthrow this courfe of decifions would fhake the titles of half the land in Kentucky. Arguments drawn from the inconvenience of unsettling titles to real estate have always been refpected. If it is an error, yet where "it is « established and has taken root, upon which any rule of "property depends, it ought to be adhered to by the judges, ❝ till the legislature think proper to alter it, left the new "determination fhould have a retrefpect, and shake many "questions already settled." Bl. Rep. 264, Robinson v. Bland. 2 Bl. Rep. 696, Rice v. Shute. 1 P. Williams 223 Regina v. Ballivos and Burgenfes de Bewdley. In 1 P. Wil liams, 399, Goodright v. Wright. The court faid "that "the altering fettled rules concerning property is the moft "dangerous way of removing land marks." The fame doctrine is held in 2 P. Will. 2 Dawes v. Ferres, and in Wagstaff v. Wagstaff, 2 P. Will. 259.

The furvey could be no notice to Wilson because it was alterable, he knew it ought to be altered, and he might well fuppofe it would be altered. The book of furveys is no record, and is not of more authority than the book of entries, which is the only book to be resorted to, to know what lands have been appropriated.

But if the furvey was notice, it was notice only of an illegal act. Notice can not make that lawful which was unlawful in itself, nor that unlawful which was in itself lawful. 4 Term Rep. 639, Farr v. Newman.

The court took time till this term to confider, and now the chief justice delivered the following opinion:

Opinion of the Court.

THIS is a writ of error to a judgment of the court of the United States for the district of Kentucky, rendered en a caveat, and is governed by the land laws of Virginia.

WILSON

V.

MASON.

WILSON

V.

MASON.

In the year 1779 the legiflature of that commonwealth opened a land office and offered for fale, with fome refervations, fo much of that tract of country lying within its boundaries fouth-east of the river Ohio as was then unappropriated: a part of which now conftitutes the ftate of Kentucky.

Every person who would pay at the rate of forty pounds for one hundred acres into the treasury of the state, became entitled to fuch quantity of wafte and unappropriated land as was, at that rate, equivalent to the money paid, for which a certificate was given to the register of the land office, whose duty it was on receipt thereof, to issue a warrant for the quantity of land purchased, authorizing any furveyor, qualified according to law, to lay off and furvey the fame. A warrant might also be issued on certain other rights.

A chief furveyor was appointed for each county, whofe duty it was to nominate a fufficient number of deputies for the bufinefs of his county, and the law proceeded to direct that "every person, having a land warrant founded "on any of the before mentioned rights, and being de"firous of locating the fame on any particular wafte and "unappropriated lands, fhall lodge fuch warrant with "the chief furveyor of the county wherein the faid lands "or the greater part of them lie, who fhall give a receipt "for the fame if required. The party fhall direct the "location thereof so specially and precifely as that others may be enabled with certainty to locate other warrants "on the adjacent refiduum; which location fhall bear "date on the day on which it fhall be made, and shall be "entered by the furveyor in a book to be kept for that "purpose, in which there fhall be left no blank leaves or "fpaces between the different entries."

George Mafon was one of the earliest purchasers under this law.

On the 29th of April, 1780, he made the following

entries:

"1780, 29th April, George Mafon enters 8,400 acres "of land to begin on Panther creek on the eaft fide

"thereof, oppofite to a beech on the weft fide about four "miles above the mouth of the weft fork, and to run up "and down the faid creek and eastwardly for quantity.'

"1780, April 29th, George Mafon enters 8,300 acres, "to begin at the upper corner of his 8,400 acre entry, and "to run up the creek on the east fide and back for quan"tity."

Panther creek pursues a general weftwardly courfe from its fource till it empties into Green river.

The creek forks fomething more than twelve miles and one quarter of a mile in a ftraight line above its mouth; and one of those forks, the direction of which towards its fource is northwardly, has, from the beginning of the year 1780, been generally termed the weft fork, and the other has been termed Panther creek.

On the 27th of October 1780, Mr. Mafon made the following entry with the fame furveyor :

"1780, October the 27th, George Mafon defires to "make his entry of 8,400 acres, more fpecial on Panther "creek, viz. to begin four miles above the forks of Panther "creek where it mouths into Green river on the east fide "running up and back for quantity."

In the months of September and October, 1783, these two entries of 8,400 and 8,300 acres were furveyed by James Hord, one of the deputy furveyors of the county of Jefferfon, which furveys, as was the custom, were made conformably to the instructions given by Mr. Mafon's agent.

The furvey of the entry of 8,400 acres is supposed to conform to the explanation or amendment of that entry made in October, 1780. It begins four miles above the mouth of Panther creek and fomething more than eight miles below its forks.

The furvey of the 8,300 acre entry adjoins the furvey of 8,400 acres on the upper fide; and the plat was shown by the surveyor before he would return it to the then agent

M

WILSON

v.

MASON.

WILSON of Mr. Mafon, who, after its fuppofed variance from the entry was suggested to him, approved it and directed it to be returned to the office.

V.

MASON.

These surveys were returned in the course of the fall, 1783.

The fuppofed variance between the furvey and location of the 8,300 acres was afterwards, about the 12th of September, 1784, pointed out by the furveyor to a fubfequent agent of Mr. Mafon, who also approved of the manner in which the surveys were made, and returned them to the land office.

On the 9th of April, 1783, George Wilfon enters with the furveyor of Jefferfon county 40,926 acres of land on Panther creek, fo as entirely to include George Mafon's furvey of 8,300 acres.

This entry, though in the name of George Wilfon, was made by John Handley, a deputy furveyor for Jefferfon county, for his own benefit and that of Chriftopher Greenup, as well as for the benefit of George Wilfon, and at the fime of making the entry, full knowledge of the previous furvey made of the fame land for George Mafon, had been obtained by the faid Handley, who had feen the surveys in the office and had communicated this information to his two partners in the entry.

In the month of March, 1784, George Wilfon entered in the fupreme court of the district of Kentucky a caveat to prevent a grant from iffuing on George Mafon's furvey of 8,300 acres, because the furvey was made contrary to location, and because the entry was vague, he claiming the fame, or fo much thereof as interferes with his entry made on treasury warrants for 40,926 acres on the 9th of April, 1784.

Pending the caveat George Mafon departed this life, and the fuit was revived against Richard Mason, devisee of the faid George, at whofe petition it was removed into the court of the United States, held for the district of Kentucky.

A cross caveat was entered in the fame court on the part of Richard Mafon, to prevent the iffuing a patent to George Wilfon, and thefe caufes coming on to be heard, it was agreed that the judgment rendered in the caveat Wilson v. Mason, should be also entered in the case of Mafon v. Wilfon.

In June term 1800, the opinion of the court for the district of Kentucky was given that the defendant Mason had the better right, and it was ordered that the caveat entered by Wilfon fhould be difmiffed.

To this judgment the plaintiff Wilson has obtained a writ of error, and the principal queftion now to be decided by this court is, which of the parties has the better right?

But before entering on the question it may be neceffary to notice a preliminary point made by the counfel for the defendant in error. He contends that in a caveat the decifion of the district court is final, and that the cause cannot be carried before a superior tribunal.

To maintain this propofition he relies on an act of the legiflature of Virginia, making the judgments of the dif trict courts of the state final in cafes of caveat; and on the compact between Virginia and Kentucky, which stipulates that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws.

This argument would not appear to be well founded had Virginia and Kentucky even been for every purpose independent nations; because the compact must be confidered as providing for the prefervation of titles, not of the tribunals which should decide on those titles. But when their situation in regard to the United States is contemplated, the court cannot perceive how a doubt could have exifted refpecting this point. The conftitution of the United States, to which the parties to this compact had affented, gave jurifdiction to the federal courts in controverfies between citizens of different ftates. The fame constitution vested in this court an appellate jurifdiction in all cafes where original jurifdiction was given to the

WILSON

v.

MASON.