
    MAY TERM, 1800.
    Mesheck Carter v. Samuel Oldham.
    
      In Ghancery.
    
    This was. an appeal from a decree of the court of quarter sessions of Nelson county.
    Samuel Oldham, .on the 29th day of May, in the year 1780, made the following entry with the county surveyor, to-wit:
    “ Samuel Oldham enters 4,000 acres *upon treasury warrant, on a creek emptying in on the north side of the Rolling fork of Salt river, known by the name of Eaton’s creek, beginning about half a mile from the mouth of said creek, and running up both sides for quantity.”
    And having surveyed 3,222 acres of the said land in the manner described on the connected plat, obtained a patent for it.
    Mesheek Carter, on the 29th day of September, in the year 1780, made the following entry with the county surveyor, to-wit:
    “ Mesheck Carter, assignee, etc., enters 400 acres upon a treasury warrant, on the north side of the Rolling fork, and the west side of Pottinger’s creek, including a spring and a sugar tree, marked M. G.”
    And having surveyed the said 400 acres of land, in the manner described on the connected plat, obtained a patent of earlier date than that of the appellee, who brought the suit in the court of quarter sessions, to obtain a conveyance of the legal title to the interference.
    The annexed connected plat, No. 38, was returned in this cause, of which the following is an explanation :
    
      
      
    
    
      
    
    1 2 3 4, Mesheck Carter’s 400 acres, according to survey. 5 6 7 8 9 10 11 12 13 14 15 16 17 1 18 19 20 21, Samuel Oldham’s survey of 3,222 acres, on his entry of 4,000 acres. A, the improvement, where stands a beech tree marked thus R. R. B, the ledge of rocks below the mouth of Carter’s spring branch. C, Carter’s spring. D, the Big knob and Clay lick, spoken of in Heaton’s deposition. K K, the Knobs. 27, the Rolling fork. From D to 27, Pottinger’s creek. 22 to 23, the Beech fork. 24 to 25s, Cox’s creek arid its branches. 26, Cox’s station.
    The following is the testimony which was produced at the trial:
    William May deposed, that he could not say with certainty when he first heard Pottinger’s creek called by that name; but it is certain that it was called Pottinger’s creek in February, 1780,
    
      because it appears that Samuel Pottinger’s settlement and preemption was obtained in that month, and located on Pottinger’s creek, from the records of certificates of settlement and pre-emption which he has in his possession.
    That he had heard of Heaton’s creek, but when he could not recollect, but supposed that it was the same creek that is now called Pottinger’s creek, but does not know it to be the same; and ratherosupposed he obtained that knowledge from Oldham’s entry and survey.
    Joseph Bane deposed, that he was on Pottinger’s creek in August, 1779, and at Pottinger’s cabin; and that the creek was then called Pottinger’s creek.
    That he never saw the creek afterward until 1785, and that he never knew it by any other name. Was acquainted with one Jonah Eaton in Dunmore’s war, who was a Jersey man and a gunsmith ; he was an honest man as far as he knew, but a little sap-headed, but was not a natural fool.
    John Houston deposed, that he came to the country in March, 1780, and came up to Lynn’s station, and went out to hunt on Pottinger’s creek in July, 1780 : that it was then called Pottinger’s creek, and that he has always heard it called by that name, and no other since that time until this dispute arose.
    . That in fall of 1780, he hunted on the creek and every prong of it to the mouth, and on the other side of the Rolling fork, and that he never saw any cabins on the creek but Pottinger’s.
    That he was on the creek and over it before Pottinger settled on it; that Pottinger came there about Christmas in the same year. That had there been other cabins on the creek, from his knowledge of it he thought he should have seen them, as at the same time he saw a number of cabins on Prather’s creek, and as cabins were then not much decayed.
    That he was acquainted on the creek from the head down to the mouth, and that there is a high knob near to where Haydon lives, and another knob nearly equally round and large, called the Pine lick knob, both on the headwaters of Pottinger’s creek:
    That he never saw any cabins on the creek but Pottinger’s ; but had seen trees belted, and he understood they were belted by Sutherland, where Haggin lives near the head of the creek.
    That in some places the cane was tolerably stout, but the cane generally off from the creek, was small maiden cane, such as he could see a deer’s back over. That the land at the mouth of the creek is pretty rich and good, and that there is tolerably heavy cane up the creek a piece, but rather wet and beechy on the lower side, of the creek.
    "William Chinowith deposed, that in the year 1779, in August or September, he was on Pottinger’s creek with John Soverns, who carried him to Pottinger’s cabin, and told him that it was Pottinger’s creek, and that he expected to find Pottinger at his cabin.
    That from that time until this dispute arose, he always heard it called Pottinger’s creek and by no other name, but that about three or four years ago he heard there was a dispute about the name of the creek.
    That in the said year of 1779, he made four improvements on the said creek, two of them not far from Pottinger’s cabin, that is, not more than a mile and a half above, that three of them were on the south side of the creek, and that they were tomahawk improvements.
    That he raised no cabin, but deadened a few trees and made a few brush heaps-
    That he was not acquainted with the meanders of the creek, or ever know of a lick in the bank of it.
    That he was in company with Heaton at the falls of the Ohio, that he left the falls for some time and when he came back, said he had been out on the Eolling fork.
    That Heaton was neither the biggest fool or the wisest man he knew, but that he stocked a gun well.
    John Davis deposed, that he was with Carter when he located this land, and knows this to be the land which he located. That he and Charles Lee was once in conversation with the complainant Oldham respecting the land which he claimed on Pottinger’s creek, and the complainant then said he did not believe it to be the place, for it was not the land described to him.
    That he always knew the creek by the name of Pottinger’s creek until Oldham came forward to survey, and that it has uniformly since been called Pottinger’s creek, only when Oldham’s claims were talked of, and then it was said Oldham’s claims called it Heaton’s creek, but it was supposed generally, that Heaton never had seen said creek.
    That he heard it called Pottinger’s creek when he was on the Monongahalia, and that he never saw any tree or trees on this creek marked I H, or J H, or any of the cabins on this creek said by Heaton in his deposition to be made by him.
    
      Samuel Pottinger deposed, that he 'came to this country in the year 1776, and that in the year 1779, James Harrod and himself came to the creek now called Pottinger’s creek, and that the said Harrod then gave it the name of Pottinger’s creek, by which name and no other he had always heard it called since that time, until the year 1782, when William Oldham surveyed his claim on said creek, his entry called for Heaton’s creek, but before that time he never heard it called Heaton’s creek.
    That he first returned after he had been there with Harrod and stayed some time on the creek, some time before Christmas in the year 1778.
    That he traveled on all parts of the creek, but discovered no cabins within three miles of the land now in dispute. That there is good land, and some not good at the mouth of Pottinger’s creek; that he saw two improvements, one about half a mile from this place (Meshech Carter’s), the other at the fork of the creek. That these improvements had some trees deadened, and two or three rounds of logs put up, and that he likewise saw one up the North fork.
    That the cane was very rank and plentiful in the bottoms on the creek, and was generally as high as a man’s head, and a great many as high as a man’s head on horseback.
    That he did not remember that he ever saw any trees marked I H, or J H, on this creek, nor did he know that any axes were found on Pottinger’s creek, nor who made the improvement described above.
    That the length of Pottinger’s creek is about eight miles on a straight line, and that there is a large round knob at the head of this creek, and likewise a clay lick on the south side.
    Daniel Yittilo deposed, that he was with Carter when he made his entry, and that this is the place he entered, that he always heard this creek called by the name of Pottinger’s creek, and no other name until the dispute took place between Carter and Oldham; and that in the year 1780, every person he heard speak of it, called it by that name.
    That he never saw cabins on this creek in the year 1780, or any trees marked with the letters I H, or J H, and at the mouth of the creek the land is very good, but out a piece from it, flat and wet ground.
    Henry Prather deposed, that in the year 1776, in the month of June or July, in company with Edward Hogan, he went down the creek now called Prather’s creek to the mouth of the said creek, and discovered no improvements except a small one on one tree ; that one of the letters was C, the other one he does not recollect, the letters appeared to have been made with a knife, and there .were two or three saplings blazed.
    That the improvement was about one hundred yards from the mouth of Prather’s creek, on the upper side of the creek, that the said Hogan and himself crossed the Bolling fork, and after some time returned to camp, and that he and his company being five beside himself, went down Prather’s creek a second time to the mouth, and returned up the same, and discovered no improvements but as above.
    That they then fell upon the waters of the creek, now called Pottinger’s creek, and made an improvement above the forks, and some of the company went down the creek and returned, and gave information that, they had found improvements below, which caused them to quit improving, as they supposed those old improvements would prevent them from holding land.
    That in the spring of 1780, he was on Pottinger’s creek and discovered two improvements, which consisted of three or four logs round, and about twelve or fourteen feet long, that those improvements were below the main forks of Pottinger’s creek.
    ■ That thin, and what is generally called maiden cane grew on Prather’s creek in 1776.
    That large cane for that part of the country grew in the bottoms on Pottinger’s creek, but up from the bottoms it was maiden cane.
    That he never heard Pottinger’s creek called Heaton’s creek until last summer, but that it was always called Pottinger’s creek in the year 1780, by those whom he heard speak of it.
    That he had frequently conversed with Heaton in the year 1780, at the falls of Ohio, but never heard him say that he had made improvements on Pottinger’s creek.
    That the mouth of Prather’s creek was good land for that part of the country, and on the lower side it was land of indifferent quality.
    Benjamin Carter deposed, that he came down the river in the year 1779, with Jonah Heaton; that he afterward saw William Oldham and said Heaton together at Beargrass, at Asturgus’ station ; that said Heaton was telling said William Oldham, that he had m^de several improvements, perhaps as far as ten cabins, and that if Oldham would give him five hundred acres, he would give him entries for these ten cabins.
    That Bobert Steele, John Crow and himself were called in.as witnesses to the contract; that Oldham asked Heaton where the land lay, and that Heaton replied it lay on the Bolling fork, or Beech, he did not know which, on a big creek.
    That Heaton then got scared with the Indians, and took a notion to go into the old settlement.
    That Heaton then sold his five hundred acres to Peter Bellus for a bell to put on his horse as he -vyent through the wilderness. That Heaton and Bellus then started to go and look for the land, that they were gone about a week, that Heaton said they could not find the land, and Bellus moved to the upper country.
    That he came down to Pottinger’s creek in the year 1779, and before that, time had purchased for Mesheck Carter an improvement on the land now in dispute, from Daniel Driscin, which was made by Pottinger; and that Mesheck entered the land.
    That ho was up and down the creek in the year aforesaid and never discovered any cabins or improvements below the forks of the creek, that' there was an improvement in the forks of the creek, which William Stewart said he had made.
    That since the year 1780, he had lived near Pottinger’s creek, and had frequently been on it, and that he had always heard it called Pottinger’s creek, and never saw any such letters as I H, or J H, on any trees on the said creek, nor ever heard Heaton say that it was called Heaton’s creek.
    That Heaton told him that he had left axes where he made his improvement, but that he had hunted for them, and could not find the improvement or axes.
    Samuel Goodin deposed, that he came down the river in the year 1779, with Jonah Heaton, and left the said Heaton at the falls of the Ohio, and came himself out on Pottinger’s creek ; that several improvements were made by his company, and that he saw no improvements on the creek at that time.
    That he took some ore from Pottinger’s creek, and that Heaton and himself tried to melt it, but that he does not recollect that he ’ told him the place where he had got it.
    That he never heard Heaton mention that this or any other creek was Heaton’s creek, or that he had made any improvements on this creek. That the part of this creek, he was on in the year 1779, was above the forks.
    
      Isaac Goodin deposed, that Jonah Heaton at the falls of Ohio came out on Pottinger’s creek, that several improvements were made by his company, that he saw no improvements on the creek at that time.
    That he never heard Heaton mention, that this or any other creek was Heaton’s creek, or that he made any improvements on this creek.
    That the part of the creek he was on in the year 1779, was above the fork, and he then saw trees deadened, but did not see any cabins, or the foundations of cabins that he recollects.
    That the cane on this creek in the year 1780, was rather higher than á man’s head generally, but there was some small cane.
    That he did not know of any axes being found on this creek ; that there was a large knob at the head of Pottinger’s creek, and likewise a large clay lick on the south side thereof.
    James Ray deposed, that he went first to Pottinger’s creek in the summer of 1778, and that there were several improvements made on said creek, which appeared to have been made more than one year ; that there was a large knob at the head of Pottinger’s creek, but that he never was at it, until the year 1779.
    That the land on the lower side of the creek is beechy wet land, and the upper side is of a dryer nature, and better land ; that he never heard Pottinger’s creek called by the name of Heaton’s creek or by any other name than Pottinger’s.
    That in the year 1780, it was generally known by the name of Pottinger’s creek; that as large cane grew on that part of the creek, as any in that part of the country, and on the hills of the creek it was smaller and thinner, about the height of a horse’s sides.
    David Glenn deposed, that in the month of May, 1780, William Stewart and himself started for Green river, from Wilson’s station ; that they went by a number of Stewart’s improvements; after which they fell on the head waters of Prather’s creek, on the east branches thereof, and immediately came to • an improvement marked No. 9 on a tree, with a number of letters, among which were these, I 35, that he then .asked whose they were, Stewart answered they were Heaton’s and company.
    That they then went on down the creek, came to an improvement No. 8, with the same marks also; then down the same branch to No. 7 ; that at this improvement Mr. Stewart and himself fell in conversation respecting those improvements, and that Stewart told him, he came on Eaton and his company at some one of the improvements, while they were improving in the year 1776 ; that the improvements were all marked with red.keal and letters also.
    That the cane on .that creek was generally about as high as a man’s hips, hardly any higher than a man’s shoulders; that he had often heard there was a lick in the bank of Prather’s creek near the mouth, about two miles from the mouth, but never saw it.
    That on the oast side of Prather’s creek about one-quarter of a mile from the same, and about three-quarters of a mile from the mouth, there is a rocky spring.
    That he was acquainted with Pottinger’s creek, as early as the year 1780, and there was generally large strong cane on it, espcei-' ally from the forks down.
    That he discovered but one improvement on Pottinger’s creek, and that he never saw a lick in the creek any where except near the head. That he had heard Prather’s creek-often called Heaton’s creek in the year 1780 and 1781, and never knew any other creek by the name of Heaton’s creek.
    Atkinson Hill deposed, that some time in the year 1780, in the summer time of the year, he found a certain Peter Bellus, and one Isaac Romine, lost in the woods, who informed him that they were in search of some lands belonging to Jonah Heaton, and said that Heaton was to give Bellus some part of the land for finding it, how much or what part he did not -know, but that he told him if he would go out with him he would kill him some meat.
    That they went on hunting to the head of Prather’s creek, that he did not know it was Prather’s creek, but that he has since known it to be so. -
    That when they came to the head of the creek to the Big lick, Bellus declared that lick answered the description that Heaton had given him, and seemed to be glad that ho had found the place ; but that he said, if it was the place, there was some blazes down the drain from the lick.
    That nearly a west course, they found the blazes immediately as he had described, and that he said if he would follow the blazes down the creek that course, they would find some cabins, but that they stopped at the first water they came to, -and did not go but a small distance down the creek, and all returned back -together, and saw no improvement.
    
      That there is a very remarkable knob at the head of Prather’s creek, and that the blazes he saw on the head of the creek looked old.
    That Heaton was a gun-smith by trade, talked a great deal, and he thought some of it not much to the purpose.
    That the land is good up Prather’s creek, and there was a good deal of small cane on it; and that the land one-half mile from the mouth of Pottinger’s creek is thin and wet on the lower side.
    That the knob at the head of Prather’s creek is larger than the knob at the head of Pottinger’s creek, and that the lick at Prather’s creek is a large clay lick, that at the head of Pottingor’s creek not so large, and more mixed with stone and gravel, but that they are both on the west side of the knobs.
    That the cane in spots was middling large in the bottom on Pottinger’s creek, but on the hill sides small; and that the land on the upper side of the mouth of Pottinger’s creek is good land; that the land to begin one-half a mile of the mouth of Prather’s creek, and to extend up is as good as that within half a mile of the mouth of Pottingor’s creek extending up, for there is a good body of land on both creeks. ■
    That he had seen small clay banks, but never saw anything like a lick in the bank of Pottinger’s creek ; that it is about throe or four miles from the Knob lick at the head of Pottinger’s creek to the Knob lick at the head of Prather’s creek.
    Benjamin Lynn deposed, that some time in the fall of the year 1778, he traveled from Pottinger’s creek to the head of the same, and saw no improvement on the said creek; but that in the spring-1779, he traveled up the said creek and saw Samuel Pottinger and Harry Prather at Pottinger’s improvement, but saw no other improvements.
    That from the information of others, he understood Heaton’s improvements were on Prather’s creek; that in the year 1779, he saw improvements on Prather’s creek ; that he did not know who made them.
    That at the forks of Prather’s creek there was about 15 acres of lax-ge cane, and on other parts of the said creek, there was maiden cane.
    That there might have been other improvements on Pottinger’s creek, for what he kixew, but that he saw no more.
    That the land at the moutlx of Pottinger’s creek on the lower side, is col4 and wet beechy land ; that the size of the cabins on Prather’s creek Were about twelve feet to the best of his recollection.
    That the cane on Prather’s creek in the year 1778, was very strong and a great heap of it; that up the north fork of Pottim ger’s creek there is a large clay lick on the south side of the knob, and several little sucks around the said knob at the head of the creek.
    Jonah Heaton deposed, that in the year 1775, he came to the mouth of the Kentucky river, in company with Ool. Isaac Cox, Thomas Polke and others, and that from that place they started with a view of-going to Cox’s creek, in the county of Nelson.
    That the course which they pursued was a south-west course, or rather a little west of a south course, that they missed Cox’s creek, and that by altering it, they caine upon that creek; that there he left Cox, and together with Daniel Holeman, Thomas Jones, Richard Richardson, and Samuel Richardson, went out in order to make improvements, conceiving that they would thereby be entitled to such lands as they, or any one of them might improve.
    That they made sundry improvements on Cox’s creek, and kept on a south-west course until they had crossed a large branch of Salt river, which is, at this time, called the Beech fork of Salt river, and that there he left the rest of those who had accompanied him, and that he still, pushing on the same course, came to some big knobs, in crossing of which ho came to a chain of licks at the foot of the knobs, on the south side; that he kept down a drain, which made from the chain of licks, until it made a pretty smart creek, putting into the Rolling fprk of Salt river.
    That upon this creek, which he followed to the mouth, he made marks with his tomahawk on trees at different places, and marked his name several times and at several places; that immediately after this he returned to those who had accompanied him, with the view of taking up lands by making improvements, and they returned with him to the places’ which he marked, and at those places, or the chief of them they made improvements, by building-small cabins, such as were common in those days.
    That at the time when those improvements were made, which was in the year 1775, those who composed his company, to-wit, the persons last above named, mutually agreed that the creek on which the said improvements were at that time made, should be called and known by the name of Heaton’s creek, and by this name and no other was the said creek by him and bis pompany called and known from that time thereafter.
    
      That they then returned to Cox’s creek.
    That the creek runs a south-west course in general, and that at the distance of three or four miles going a south-west course from the Beech fork, he was, at any time, well able to ascertain where the creek was, from particular and very high knobs at the head of the creek, that is to say at the head of that creek which he went down when he left Cox’s creek, after having crossed the aforesaid chain of knobs.
    That when upon, and at the mouth of the creek, he discovered flat beechy lands and low wet land, and the growth of which is chiefly beech timber, mixed with some poplar; that the whole length of the creek, as he conceives at that time, and yet thinks, is somewhat upward of ton miles.
    That from where he camped on the Beech fork, and where he left his men, to the Big Knob of which he spoke, was about seven or eight miles.
    That he left Kentucky in 1775 and returned in the spring of the year 1779, in the month of April, as well as he recollects, and remained there from the spring, 1779, until the fall of the year 1780. ‘
    That when the office was opened, in the year 1780, he gave a memorandum to William Oldham, deceased, which contained instructions for him how to enter 4,000 acres of land, on the creek before described as having been called and known, by the name of Heaton’s creek, and directed him to begin about a mile from the mouth of the creek, and he knew that the warrants on which the entry was to be made were in the name of Samuel Oldham.
    That he returned to Kentucky in the month of January, 1796, and inquired for a creek 'formerly called Heaton’s, and then called Pottinger’s creek; and, in consequence of the direction which he received to find the creek, then called Pottinger’s creek, he went to that creek, and from a variety of natural marks, was satisfied that the creek then called Pottinger’s creek, was the same identical and individual creek on which the improvements before mentioned to have been' made by him and his company were made, and which, fit the time, was called and known by the name of Heaton’s creek. ’'
    That Samuel Oldham was in company with him when he went to the creek now called Pottinger’s creek, in January, 1796, and he directed him to keep close along up the creek until they should come to a place where there was a long ledge-of rocks, at the upper end of which a branch put in, for, by this ledge of rocks, and the particular large knob before described, he well knew that the creek then called Pottinger’s creek, was the same which was, by him and his company, in the year 1775, called, named and known by the name of Heaton’s creek. •
    That in going up the small branch, which made into the creek, at the upper end of the ledge of rocks, a very considerable distance, he found a tree marked with the letters R. R.
    That they then went up the creek until they came to the chain of licks, which has been before described, and he knew that this chain of licks was the licks he was at in the year 1775 ; and that from the licks he took down a draught (which made from the licks), until he was fully satisfied that this creek was the same creek which he and his company called and knew, in the year
    1775, by the name of Heaton’s creek (and which was then called and known by the name of Pottinger’s creek), and on which creek the entry was made by William Oldham for Samuel Oldham, from the memorandum given William Oldham by him for 4,000 acres of land, as it appeared to him from the patent in the name of Samuel Oldham, calling for particular trees which were corner trees.
    That he never was, to his knowledge, in the year 1775, or in any other year, on a creek called Prather’s creek, nor did he then know, nor does he now know a creek by that name in the State of Kentucky.
    ‘That he hid four axes on Heaton’s creek when they finished building their cabins, and when he was on the creek, in January, 1796, he would have made a search for them had he not heard there had been axes found on that creek when he was at a certain Cuthboth Road’s, who lives on the land that the said Oldham claims.
    That he is not certain that it was in the year 1775 he came to Kentucky in company with Col. Cox and others, but he thinks it was the next spring after Dunmore’s war.
    Thomas Police deposed, that he was in Kentucky in the year 1776, in the month of April, and that Jonah Heaton came with him; that they traveled together until they came to the south side of Salt river, and parted on the waters of Ashe’s creek, and that they came together again at Cox’s creek after six or seven days.
    That the persons at Cox’s or the chief of them, determined on exploring the country, and that-Jonah Heaton, accompanied by Samuel Richardson, Richard Richardson, Daniel Holeman and Thomas Jones, went out with an express design of exploring and improving lands on the Rolling fork.
    That the said company of Ileaton returned to Cox’s statioir after the space of about two or three weeks, as he believes, for he was not at Cox’s when they returned.
    That he left this country in the month of May, in the year 1776, and that he returned to it in the year 1780; and that he then heard Jonah Heaton say that he had let William Oldham have the entries for the land which he had made improvements on, and that those improvements were made upon Heaton’s creek (a creek which he had so called after himself).
    That he was in company with several persons at the surveyor’s office about the winter of the year 1783, and heard some objections started on account of the entry being made upon Heaton’s creek, because it was said that the creek was called by some Pottinger’s creek ; that the objections were produced in consequence of a dispute between Samuel Pottinger and. William Oldham about said ■creek.
    That he had frequent conversations with the persons composing Heaton’s company, and more especially with Thomas Jones (one of that company), that Jones told him that they had made their improvements near some high knobs, adjoining or contiguous to the Rolling fork of Salt river.
    Leonard Johnston deposed, that he came to Kentucky in the year 1787, in May, at which time Captain Charles Ewing applied to him to purchase of him the tract of land on which he now lives, it being a part of a tract of land sold by Samuel Oldham to the said Ewing, and lying and being on Pottingor’s creek; that there was then an old improvement, not many rods from his spring, about one-quarter of a mile from Pottinger’s creek; that the improvement consisted of the foundation of a cabin which, as well as he recollects, was about six by twelve foot in size, and timber deadened, which appeared to be old work, that the logs were rotten, and a. good many of the trees fallen down ; that he saw a tree on the same side of the creek with figures 1779, and some letters on it, about three or four years after the last mentioned date.
    That Pottinger’s creek is the first water or creek of any note after leaving the Beech fork, in going from Cox’s station to Pottinger’s creek, and that the course is a little west of south, and would hit the creek about half a mile above where he lived, which is about four miles below the head of the creek.
    
      That he thinks that if he went to go the above course from Cox’s station, he could not get to Prather’s creek without striking Pottinger’s creek.
    That there is a large knob on the head of Pottinger’s creek, on the south side thereof, and sundry licks, some very large ones.
    That he does not know that he is interested in establishing Samuel Oldham’s claim on his entries calling for Heaton’s creek.
    That he bought of Ewing, and. Ewing of Oldham, and if he should lose his land, he. should expect to recover of Ewing, and that he does not know whether Ewing is in good or bad circumstances, but .that he should suppose he was able to satisfy him for the land if he loses it.
    That he should call the country from Cox’s station to Potting-er’s creek, on a direct line after he had crossed the Beech fork, a hilly country.
    Richard Richardson deposed, that some time in the month of March, in the year 1776, as well as he could recollect, he, in company with Col. Isaac Cox, Thomas Polke, Jonah Heaton, Samuel Richardson, Thomas Jones and Daniel Holeman, left the Monongahalia eountay to come to Kentucky, for the purpose of improving lands; that on their way they landed at the mouth of the Kentucky river, and from thence went up the Kentucky river to Drenning’s lick, and from thence proceeded on to Cox’s creek, where Cox’s fort has since been built.
    That he, Heaton, Samuel Richardson, Thomas Jones and Daniel Holeman, left Cox’s creek and proceeded nearly a south-west course, with intention to find the Rolling fork, and, after pursuing their journey in that direction, they crossed the Beech fork, and camped for the night about one mile from the same.
    That the next day they proceeded on in nearly the same direction until they got into a buffalo path, which they followed until they came to a ridge where were some licks. >
    That when they were at these licks the company discovered, in a southwardly course, another ridge (a large one), and he supposed they were near to the Rolling fork, and that the same must run between the place where they were at and the said ridge.
    That they traveled on, as they supposed, down the river, until they came to a creek, which is now called Pottinger’s creek, where they encamped and proceeded to make several improvements on the creek. ' k
    That they stayed about three weeks on the said creek, which, at that time, had several names, viz: .Richardson’s creek, and Heaton’s creek ; that it was some times called by both of those names, as the company had not determined any particular name for it.
    That Jonah Heaton was the best woodsman and greatest hunter in the company, and when they were about to leave the- creek they conceived it necessary to- call it by some certain name, in order to give information to inquirers of the country or place they had been at, and for that purpose Jones and Holeman' called it Heaton’s creek.
    That after they had left the creek he some times heard it called Richardson’s creek before they got to the Kanawha, and at that place, at which Heaton got intoxicated and cut capers, the company determined to call it Heaton’s creek,, after which he never heard the creek called by the company by any other name than Heaton’s creek.
    That he knows this creek, now called Pottinger’s creek, is the same which the said company called Heaton’s creek, by the licks, knobs and natural marks along, or in sight of the creek, and an improvement, which appears like one which this deponent made by deadening trees andi putting the initials of his name on a tree, but that as to making the improvement he will not be positive.
    That the knob, of which he speaks, is at the head of the creek, by the licks, on the south side; that the land they passed through, between the Beech fork and Pottinger’s creek, -when they first visited it, was ridgy and poor.
    That the company allowed they struck the main creek, within about two miles of the mouth; that some of them had been at the mouth, but he never was.
    That they talked- of making ten improvements on the said creek, but whether they did or not, he does not know.
    That the improvements were made chiefly in the bottom of said creek, in the second bottom; that they were within five miles, as they supposed- up the creek,, beginning about a mile from the mouth, where the first and lowest improvement was made.
    That the growth on the creek was walnut, sugar tree, poplar, and shell-bark hickory, the under growth in the bottom cane ; in some places six or seven acres of large growth, and others of small growth.
    That he saw one lick below the lowest improvement on the creek, and a spring on the other side of the creek from their camp, which they walked to, and crossed, on. a log ; that the spring was about half a mile above the lick, and came out from between the rocks.
    That the lick was on the north side in the bank of the creek; that he never saw either the head or the mouth of that creek in the year 1776; that the cabins they built were sixteen by eighteen feet in dimensions, and that they girdled timber.
    That the cabins wore four or five logs high, but not covered..
    That when he was on the creek satisfying- himself as to the identity of it, which was in 1798, he searched for the- spring but not for the licks, but. did not find the spring.
    That about twenty miles from the Beech fork, on the north side, they left Cox and others; Cox having told them that there was not land enough on Cox’s creek for both companies, and struck the Beech fork, and sent two of their men to Cox’s creek, who told them there was a fine body ofiland there, and that then, they went there, and made improvements, and Cox and Polke were there when they went back, and that then they started,, as; he had said before* for the' Eoll-ing fork.
    That he never examined and knew certainly before this day two weeks (July 23, 1798), that the now Pottinger’s is the very creek on which they made their improvements, and of which he has spoken.
    That he has seen only one improvement, which appeared like one of the improvements which were made by the company, but that he can not be certain.
    That Samuel Oldham put into his possession Jonah Heaton’s deposition; that he wanted it for a form by which to form his own, not knowing how to begin one; and that Oldham read it. to him, but for what purpose he does not know;, but he understood it was that he mi-gh.t be the better convinced ; that ho was the man that was with Heaton, but does not recollect what he said to him at that time.
    That this happened at his own house in Warren county,, and was the first time he had seen the- said Oldham, which was in May or June, 1798, that he had been here a week (Jefferson), and at Mr. Oldham’s during that time.
    That Po.ttinger’s creek is the first large creek he saw when in company with Heaton and company, after crossing the Beech fork.
    That when he came up to look at and examine Pottinger’s creek, he was desired by Mr. Carter, the defendant, to go to- a creek, now called Prather’s creek, and examine that, to see if that was not the creek on which Heaton and company made their improvements, and that he went and did look at Prather’s creek, and knew positively that it was not the creek on which they made improvements.
    That' the creek is much settled, and the face of the country changed ; that they improved on the North fork, and north side of the main creek, and that the greatest body of good land is on the North fork, and on the north side of the Main fork.
    That when they came to the knob at the head of the creek, they saw the ridge aforesaid, and supposed the river to run between them and the ridge, and to avoid it they kept along buffalo paths in the valley, shunning the drains until they came to the creek; and that the course was between a south-west and west course, and that they struck the week on the north side.
    Aaron Etherton deposed, that he lived at Goodin’s station on the Rolling fork, in the year 1780 ; that he went up the said fork to the mouth of Pottinger’s creek, and went up the said creek to where Pottinger now lives, and never saw any lick in the bank of the creek; that he has been living on the creek about ten years, and never saw any lick in the bank of the creek, nor never heard of any to his knowledge.
    John "Wethrow deposed, that he had lived on Pottinger’s creek ever since the spring [1781, and never saw any lick in said creek from the forks down to the mouth ; that there might have been a lick, but he never saw any sign of it, or ever heard of it.
    Samuel Pottinger, in his second deposition, deposed that he built a cabin in the lower corner of Mesheck Carter’s field, whore one Jarboe now lives.
    That one of the improvements he first saw, in the year 1778, was just above Masterson’s field, on the south side of the creek, another in the fork, and another up the north fork of the creek; the improvement appeared to be about one or two years old; and that the improvements were about fifteen feet long and three or four logs high.
    That he was acquainted with the creek as a hunter, and if there had been any other cabins on it he supposed he should have seen them.
    That the first foundation of a cabin was about two miles and a half from the mouth of the creek, and the foundation of the second about half a mile from the other foundation.
    
      That he did not know of any lick in the bank of the creek, and if there had been a lick there'he supposed he should have discovered it, as there are generally paths to licks, and when he discovered those paths he sometimes followed them.
    That he was hunting on that ground, to the best of his knowledge, about two or three weeks in the winter 1778, and built a cabin and covered it, some time after Christmas, in the year 1779.
    That he did not discover any foundations of cabins just in the neighborhood except those before mentioned, but saw two more about three miles from his old cabin, one up one fork, and one up the other. The cabins were raised, and ribs on, and they appeared to have been raised about the same time the foundations wore laid of those down the creek.
    That he did not know who built the said two cabins, but that Henry Prather told him he was in company, and believed ho and his company had built them.
    That he was acquainted with the drains that lead from the big knob on the head of Pottinger’s creek, and did not remember to have discovered any old blazes on or near a west drain leading from said knob, nor did he ever discover any leading down the main creek. That he did not conceive himself interested in this suit.
    That he never saw any improvement at Johnston’s spring or at the marked beech ; that he saw two letters on a beech, but don’t remember what they were, nor the year he saw them ; and that James Ray and John Ray kept a number of horses on Pottinger’s creek, in the years 1779 and 1780.
    Atkinson Hill, in his second deposition, deposed that the land on the lower or north side of Prather’s creek was not good, except a small part, but that the greatest part of the good land was on the upper side.
    That he thinks the quality and situation of the land, beginning half a mile above the mouth of Prather’s creek, and running up on both sides to include 4,000 acres, such as a man would have improved and located in early times.
    That the land on the lower side of Prather’s creek, near the mouth, is broken, and the land on the lower side of Pottinger’s creek, is flat, beechy, And wet.
    That there is a material difference between the land on the lower side of Prather’s creek and the land on the lower side of Pottinger’s creek; the land on the lower side of Prather’s creek being inferior in quality, and more mixed with oak.
    
      That there is a material difference between the appearance of the large knob on the head of Prather’s creek and the knob at the head of Pottinger’s creek: the one at the head of Pottingor’s creek being more in the form of a sugar loaf, and appearing to be higher.
    That there is a chain of licks on the south side of Pottinger’s creek, running between that creek and Sulphur Lick creek, east and west.
    That Sulphur Lick creek runs into the Rolling fork between the mouth of Pottinger’s creek and Prather’s creek. That if a man,, in traveling from Bardstown to Prather’s creek, should miss Pottinger’s creek, that he would fall, into, a body of good land near the head of Pottinger’s creek, in an eastwardly direction therefrom, before he could reach Prather’s creek, and that, going from Bardstown to Prather’s creek, a man must go a very circuitous route without crossing the waters of Prather’s creek.
    That it was about a south course from Bardstown to the head of Pottinger’s creek. That in a conversation with David Glenn, the said Glenn informed him that, in going from the neighborhood of Harrodsburg, to explore Green river, in company with William Stewart, he fell upon Prather’s creek, and discovered several improvements, with letters on trees; as well as he recollects, the letters were A C; but that he was not positive as to the first letters, but well recollects that the- first letters did not stand for the name of Jonah.
    That in the year 1780 there were several buffalo roads between the Beech fork and Pottinger’s creek leading to the lick and knob on the head waters of Pottinger’s creek.
    Samuel Sanders deposed, that in- the year 1781 he'became-well acquainted with the creeks known by the names of Pottinger’screek and Prather’s creek, and never saw any improvements on Pottinger’s creek except two old improvements, exclusive of Samuel Pottingor’s- improvements,, and those old improvements appeared to be rotting down; one of them was on the land that Mesheck Carter now lives on, and appeared to have- been covered with bark; the other was below the- forks of the said creek, was-raised with small poles, and was not notched, and was about three-feet high.
    That he know of no lick but the one at the head of the- creek known by the name of the Big Knob lick, and the cane appeared to have been strong and rapid cane.
    
      That he saw seven or eight improvements on Prather’s creek, which appeared to be old and rotting down, and some of them had letters marked on the trees.
    That he was informed by Benjamin Carter, and William Russell, and several others, that Heaton’s cabins were on Prather’s creek.
    That he knew of a lick about two miles from the mouth of Prather’s creek, in the bank of the creek.
    That the cane on Prather’s creek was generally small, except some about the forks of the creek that was large.
    That it was about four miles from the mouth of the creek to the forks, where the large cane was on Prather’s creek. .
    Benjamin Frye deposed, that he traveled with Jonah Heaton from the State of Yirginia, in the fall 1780, that he conceived him to be a man of as good understanding as common, and as well qualified to attend to his own business, and that he swapped horses with the said Heaton, from which he thought he discovered a sufficient capability in said Heaton to take care of his own interest; that he was in his company about a month.
    John Phillips deposed that in the spring of the year 1789 he came to the falls of the Ohio; that Jonah Heaton, he thinks, was there at that time and continued there until some time in the winter, when he and Heaton moved out to Asturgus’ station, and lived at the station until the fall 1780.
    That Heaton was supposed to be a trifling kind of a man; people used to make diversion of him ; and that he was not of any great account among people, but that he knew nothing against his honesty.
    That there is no chain of high knobs between the Beech fork and the Knob lick on Pottinger’s creek; there is some broken ground about the Beech fork, but that he knew of but two knobs, the Pine lick and Knob lick, both on the head waters of Pottinger’s creek.
    That Pottinger’s creek waters are the first waters you meet with after leaving the waters of the Beech, in going a south course to Bardstown.
    That from the Beech fork to the Knob lick, from where you would cross it in going about a south course from Cox’s station to said knob, is about three or four miles from the Knob lick aforesaid.
    Thomas Phillips deposed, that he was acquainted with Jonah Heatort in 1779 and 1780.
    That he was supposed to be a trifliñg kind of a man, and not of much, account among the people, but that he knew nothing against his honesty; and that he heard what was said by John Phillips, and knew it to bo true.
    Samuel Studdart deposed, that on the 4th day of September, in the year 1780, he traveled down Pottinger’s creek, and saw no improvements on the said creek but Samuel Pottinger’s.
    That the cane on Pottinger’s creek was very strong, and a great deal of it; that he did not know of a lick within about one mile and a half or two miles of the mouth of the said creek ; there was a lick in the bank of Prather’s creek, but he does not recollect how far up the creek.
    That he saw improvements on Prather’s creek, in the year 1782; that they were of different sizes, from eight to ten feet square, and several of them were rotten and fallen in from the top.
    That he understood, from the information of Benjamin Carter and others, that these improvements were called Heaton’s; that the cane on Prather’s creek was generally small except some in the forks. *
    Peter Bellus Felt deposed, that in the year 1780 he was living at Asturgus’ station ; that William Oldham came there and inquired of Jonah Heaton if ho had any improvements, for that ha had a parcel of land warrants.
    That Heaton told him that himself and others had made several improvements, but no part of the company was in the country at that time but himself.
    That Oldham then agreed to give the said Heaton one hundred acres out of every thousand for the location, and that the said Heaton informed Oldham that he then gave it the name of Heaton’s creek, and that he knew no other name for it.
    That he understood by said Heaton that it was never called Heaton’s creek before that time. That he bargained for the whole land Oldham was to get, but can’t recollect what he was to give Heaton for it,“but thinks it was a chunk of a mare, or bell; the bell he well recollects.
    That the reason the bargain was broke off was because Heaton did not show him the land; that Heaton gave him some instructions to find the land, but he does not know what they were; but that they fell in upon Pottinger’s creek, which they thought was the place, and hunted for cabins; that they found one and, from the description, did not know but that it was the place ; that they then hunted for axes, but could not find any.
    
      That they wont on down the creek to Pottinger’s cabin to inquire how they were to find the land, but he was not at home; that they then went on down the creek till they came to a sulphur lick in the bank of the creek, how far below Pottinger’s he could not tell; and from that he thinks they went home, and did not suppose it to be the place. . '
    That Isaac Romine was with him. That he was then and now is called Peter Bellus, but his name is Peter Bellus Felt. That ho is only certain of having seen one cabin on Pottinger’s creek, but there might have been more.
    That Heaton described some remarkable place where the axes were hid, but that he does not recollect any thing about it.
    That the lick they saw below Pottinger’s was on the left hand side going down, in the bank of the creek; and that he knew that to be Pottinger’s creek all that time, for he found Pottinger’s place; and that he thinks he had heard of a-creek called Pottinger’s creek before that time.
    That when Heaton was leaving the country, in the fall 1780, he called on him to go with him to show him the land, and he went with him part of the way, but his wife prevailed on him to keep on straight for the settlement and not trouble his head about the land, and then he returned.
    That Heaton was called honest, and was of common understanding, but that he did not know whether he was called a woodsman ; but this much he knew, he steered a very good course toward Pottinger’s creek at the time he was with him.
    That in the fall 1780 he never heard of a creek called Pottinger’s creek, nor at the time of Heaton’s leaving the country, that ho recollects.
    The court of quarter sessions decreed the defendant to convey to the complainant; from which decree the said defendant appealed to this court.
    And now at this term the appeal was argued.
    It was contended on the part of the appellant that it was, in the first place, uncertain whether Pottinger’s creek was really the creek said by Heaton to have been called by his naine; but that, if it was the creek, the entry was too uncertain to enable the appellee to divest the appellant of his legal title, inasmuch as the entry entirely depended on the call for Heaton’s or Eaton’s creek, which was not the name by which the creek was generally known.
    On the part of the appellee it was urged that the creek now called Pottinger’s creek was the one on which Heaton and company improved; and that, although the creek was not generally and notoriously known by the name of Heaton’s or Baton’s, it was known by that name to Heaton and company; and that a subsequent locator might, by proper inquiry, have found the place described by the entry.
   Bt the Court.

It is satisfactorily proved that the creek on which the appellee has surveyed his claim is the same which is called for in his entry, but the said creek received the name of Heaton’s creek in the year 1776, from a company which made improvements thereon.

That the name of the said creek was afterward changed, and at the time the appellee’s entry was made was much more generally known by the name of Pottinger’s creek.

The. only question which arises in this case is whether the change which took place in the name of the creek, and its being much more generally known by the last name when the entry was made, has rendered his entry so vague and uncertain that the appellant’s entry, though posterior in date, shall have the preference.

On this question the court is of opinion that the entry of the appellee contains such a description as might, on reasonable inquiry, have conveyed notice to a subsequent locator, moro especially as it appears that Heaton, by whose name the creek was called, came to Kentucky in the year 1779, and continued here until the fall of 1780; and farther, that it would be unjust and offensive to make the appellee responsible for an event which he could not possibly foresee, and against which he could not have been guarded without a knowledge of the change which had taken place in the name of the creek, which is not even pretended.

Decree affirmed, with costs, etc.

Note. — See the case of Herndon v. Hogan, ante, p. 3.  