
    * Clement A. Buckley and others v. Andrew Gilmore and Jared Hopkins.
    When an entry calls for 1000 acres on the lower site of Brush creek, “ beginning at a marked cherry tree, supposed about ten miles above Todd's road, running thence west 400 poles, and from each end of this line for quantity,” the distance is understood to be in a direct line, and not by the meanders of the creek, it being a small stream, and the usual line of travel not upon its banks.
    If the marked tree be notorious, so as to be easily found by a surveyor with reasonable diligence, the entry will not be invalid, although its distance from Todd’s road exceeds that called for.
    
      The apparent intention of the locator is to be regarded; and if the lower side of a creek be called for, not as a boundary, but as designating the position of the starting corner, lands on both sides of the creek may be included, if they come within the descriptive boundaries.
    This is a Bill in Chancery, to review a decree of the Supreme court, on the Circuit in Highland county.
    The original bill was filed by Gilmore and Hopkins, stating that, on the 17th of August, 1787, Josiah Tannehill entered 1333J acres, No. 1326, on the waters of the east fork of Brush creek, “ beginning, for said entry, at the south-west corner to Thomas Jones, and others’ survey, No. 1269, running thence west, 400 poles, and from the termination of this line, and from the beginning with Jones and others’ line, north, for quantity.” On the 15th October, 1790, Tannehill’s entry was surveyed, duly returned and recorded, and a patent issued thereon, on the 23d day of February, 1818, to Thomas. Morgan, assignee, under whom Gilmore and Hopkins now claim.
    That, on the 20th day of February, 1797, John Clemson entered 1433J acres, No. 2771, which was surveyed the sixth of March, in the same year, and patented on the 12th day of May, 1800, to the assignee of Clemson, one Daniel Buckley, under whom Clement A. Buckley, and the other complainants in review, claim.
    The bill charges, that Clemson’s entry, and survey, were fraudulently made, so as to interfere with Tannehill’s ; Clemson having knowledge of Tannehill’s prior entry.
    * That the patent having first issued upon Clemson’s entry, No. 2771, Buckleys have brought an action of ejectment against those holding under Tannehill’s entry, and have recovered, upon the strength of their elder patent. The bill charged, that this recovery was contrary to equity, and claimed relief agaimt it, praying that Buckleys might be compelled to convey to complainants so much of the land covered by their patent as falls within Tannehill’s entry, and for general relief.
    In the answer to this bill, all fraud was denied. The validity of Clemson’s entry was insisted upon, and it was claimed that Tannehill’s entry was invalid, as it called for and depended upon that of Jones and others, No. 1269, which was vague, uncertain, and not sufficient as a locative call. The cause was put at issue, and a decree entered in the Supreme court, in favor of Gilmore and Hopkins, the complainants in the original bill.
    To review this decree the present bill is filed.-
    
      The main question raised, is as to the validity of the entry, No. 1269, by Jones and others. If this entry be sustained, it was conceded that the case is with the defendants to the bill of review.
    The entry was as follows:
    “ August 16, 1787. No. 1269. Thomas Jones, Laughlin McLain, Michael Kairns, and Samuel McCaul, enter 1000 acres of land, etc., on the lower side of Brush creek, beginning at a cherry tree marked T, supposed about ten miles above Todd’s road, running thence west, 400 poles, and from each end of this line, north, for quantity.”
    The notoriety of Brush creek, and of Todd’s road, is admitted, and it is agreed that the latter crossed the former at the place indicated by .the surveyor. The sufficiency of Jones and others’ general, or neighborhood call, is, therefore not questioned.
    The relative position of the surveys, their interference, and the distances, are designated on the draught.
    * The substance of the testimony was as follows :
    Zephania Wade stated, that he has resided in Manchester, Adams county, Ohio, since 1790. From 1790 to 1794 he was almost constantly engaged as marker for locators of land, particularly on the waters of Brush Creek. In October, 1793, he was out in capacity of marker, when Jones and others’ entry, No. 1269, was surveyed. When in pursuit of the beginning corner of that entry they found the cherry tree, called for on the lower, or west side of Brush Creek, without any difficulty. This witness, by direction of surveyor, marked the said cherry tree, together with a white oak and buckeye, standing immediately on the lower or west bank of Brush Croek, as a corner, and then ran round and marked the whole tract No. 1269 Cherry tree marked T, when said entry was surveyed, was very visibly cut, so that any one who could see the tree could also see the letter ; and the letter bore the appearance of having been made several years before the date of survey. As early as the spring of 1791 he became well acquainted with Brush Creek, and its branches, all known then by names they now bear. That branch of the creek called East Fork has borne that name since 1791 ; and being much the longest and largest of the forks of said creek, has always been considered as the main source of the creek. It has also been called and known as Brush Creek, and main East Fork. Since 1791, any one receiving directions to meander Brush Creek to its source, would have passed up that fork called East Fork. Any one wishing to find the beginning corner of Jones and others’ entry, No.-1269, with a copy of the entry in his hands, could not fail to find the cherry tree marked T, for the tree was situated immediately on the lower, or west bank of the creek, and the letter T was cut upon the tree, and was exactly opposite to any person going up on that side of the creek, so that he could not miss it with his eyes open. The letter was large, and plain to be seen. In 1790, and for several years afterwards, Manchester was the nearest settlement to entry No. 1269; and the waters of Brush Creek wore well known in said settlement by their present names as early as 1791, 66] except Elk Run, which *did not obtain much notoriety until 1793, when it was as well known as the others. There are three well known points on Todd’s road, which are about ten or twelve miles from and below the corner of Jones’ entry, No. 1269 : the Painted Trees, Hanging Rock, and Coffin Spring. I knew of no cross traces from Todd’s road to Brush Creek, north of where that trace crosses Brush Creek, at or before October, 1793. When going to make Jones and others’ survey, we started from Manchester; commenced making surveys at mouth of Beasley’s Fork, and made several surveys ; were out twenty-two days. On our return, started from the three forks of Brush creek, and struck Todd’s road about one mile north of where it crosses Brush creek. Had I started from Manchester to find a marked tree about ten miles above Todd’s road, the surest way would be to strike the creek where the road crossed, and follow it up ; and,'it is more than likely, I should have kept on the lower side of the creek.
    George Yinsonhaler stated that he lives, and has lived, in the neighborhood of the lands in controversy for the last twenty-six years ; was well acquainted with Jones and others’ and Tannehill’s surveys. At least twenty-five years ago saw corner of Jones’ entry, No. 1269, on the lower bank of Brush creek; at this corner was a tolerably large cherry tree, with a large letter T cut upon it. The marks on the corner trees appeared as old as any marks at that early day. Todd’s road crosses Brush creek about a half mile below where G. Sample now lives. Distance from corner of Jones and others’ entry, down the creek, to Todd’s road, is ten miles, on a straight line. Last time I saw cherry tree marked T, corner of entry No. 1269, was about twenty-two years'ago.
    George Collings, for complainant in review.
    The first objection to the entry of Jones and others, and which must be fatal, is the great disparity of the actual distance from Todd’s road and the distance called for. Grubb v. Rice, 2 Bibb, 108, 109 ; Hill v. Graham, 2 Bibb, 141. This * disparity is not removed by [67 the notoriety of ths cherry tree, for notoriety it had none.
    The term “ about ” does not cure the defect, for the same qualification is found in both the above eases, and it was held of no significance. And if the entry of Jones shall be sustained, I do not perceive what limit is to be set to distances. About ten miles may be construed two miles or twenty miles. Such calls are calculated to bewilder and mislead.
    In Haws v. Marshall, 2 Marshall, 415, Haws had entered 5000 acres, etc., “ beginning at a large ash tree, marked J C, standing on the Buffalo road leading from Grant’s Station to the lower Blue Licks, about five or six miles from the Licks, thence,” etc. This entry was surveyed, beginning at a large ash, marked J C, eight and three quarter miles from the Licks, on a direct course, and ten miles, forty-three poles, by the windings of the road. Per Curiam: “ The Blue Licks, Grant’s Station, and the Buffalo road passing from the one to the other, are proved to have been generally known at the date of the entry ; so that, in deciding upon the validity of this entry, it is material, barely to inquire what effect is produced upon it by the marked tree standing at a distance of upwards of ten miles from the Licks, instead of five or six.
    
      “ Assuming the tree not to have obtained notoriety, and the distance at which it stood from the Licks not to have been generally computed to be five or six miles, at the date of the entry, the mistake in the description of distance would, most clearly, be fatal to its validity; for, although a mistake in description, or a defective description, may be aided by the notoriety of the object called for, in the absence of proof of notoriety, an entry defective in description can not furnish information sufficiently certain, to others, of the land intended to be located, so as to be deemed a valid appropriation.”
    I rely, with no less confidence, on the second point; that Jones and others’ entry, as now located, is noton the lower side of Brush creek, but on either side of a fork, extending across the fork at and from the beginning. The entry is, therefore, defective.
    *Nash v. Atherton, 10 Ohio, 163. Locators are bound to [68 give a true description of the land intended to be appropriated; and whether a misdescription has occurred from mistake, arising from a Want of due diligence in ascertaining the true boundaries, or, from intention to cover other land than is described, it is equally fatal.
    “ It is not sufficient that we should now, from our own knowledge of tilings as they are, ascertain the intention of the locator. That there were such objects is not alone sufficient to the validity of an entry. A reasonable connection of the objects, and the certain moans of finding them, must be given to the entry.” Brown v. Forbes, 3 Bibb, 124.
    This want of correspondence, between the call of the entry and the land now claimed, seems to me fatal to Jones’ entry. Bodley et al. v. Taylor, 2 U. S. Cond. 230, maintains the rule of boundary I contend for; so, also, Hunter v. Hall, 1 Call, 206 ; and Blaine v. Thompson, 3 Bibb, 142, is full to the point, that Jones and others were confined to the lower side of the creek, and were bound, by their calls, to run west and north.
    There is a third objection, which I regard of much weight, but do not rely upon it with such full confidence as upon the other points, viz : the entry is made on Brush creek. The location, as now claimed, is on the east fork of Brush creek.
    Thomas Scott, for defendants in review.
    The positions of complainants counsel will be examined in the order of time in which they are stated, but, in order that my answers to them may b.e the more readily understood by the court, I shall first refer to a few general rules by which the validity of the entry in question must be tested. In the case of Massie and Watt, 6 Cranch, 170, it was decided by the Supreme court of the United States, that if an entry, by any reasonable construction, can be sustained, the court ought, and will sustain it. A locator is not bound to give the best 69] possible * description. If the description he gives is not calculated to mislead the subsequent locator, but is certain to a common intent, and will lead others, using reasonable diligence, to the place intended, the entry is sufficient, and will be sustained. Johnson v. Nall, Kentucky printed decisions, 393 ; Roberts v. Huff, Hard. 382 ; Bush et al. v. Todd, 1 Bibb, 64, 65 ; Whitaker v. Hall, 1 Bibb, 73, 74 ; and Hite v. Graham et al. 2 Bibb, 144. Description is general or locative. General, serves to lead into the neighborhood; locative, to the very object, or tract of land intended to be surveyed. Bush v. Todd, 1 Bibb, 64; Swearingen v. Smith, 1 Bibb, 92, 93; Davis v. Bryant, 2 Bibb 112; Shannon v. Buford, Ibid. 117: Marshall v. Dupay, 3 Bibb, 133; and Feyer v. Holden, Ibid. 136. General description is not permitted to control such as are locative. Bush v. Todd, 1 Bibb. 67 ; Davis v. Bryant, 2 Bibb, 112 ; Shannon v. Buford, Ibid. 117. In construing an entry, it ought to be viewed in all its parts, as one entire instrument, and thereby give to each expression its proper bearing, and t.o each word some operation. McKay v. Bodley, 2 Bibb, 481, 482; Buckner v. Frazier, Ibid. 138; Hite v. Graham, Ibid. 147; Baker v. Hardin, 3 Bibb. 415.
    When one object of the character called for is shown, that shall be taken as the one intended, if no other of like kind or character is proved. McKay v. Bodley, 2 Bibb, 481, 482; Buckner v. Frazier, Ibid. 138 ; and Hite v. Graham, Ibid. 147,
    A mistake, or defeet, in one part of the description of an entry may be corrected, or supplied, by accuracy of description or notoriety of objects employed in another part. Speed v. Wilson, Kentucky printed decisions, 92; Taylor v. Kincaid, Hard. 82; Barker’s heirs v. Craig, Ibid. 112; Respass and Arnold v. Melton, Ibid. 113; Couchman v. Thomas, Ibid. 275 ; Markham v. McKee, Ibid. 371 ; Lee v, Watts, Ibid. 450; Craig v. Macker, 1 Bibb, 11, 12 : Evan’s Heirs v. Morrison’s Executors, Ibid. 5, 8; Swearingen v. Smith, Ibid. 92 ; Smith v. Harrow, Ibid. 102, 104; and Blaine v. Thompson, 3 Bibb, 143.
    Distance, on a water course, to ascertain the beginning, etc., shall be taken on it reduced to a straight line, and not by the * meanders. [70 Johnson v. Brown and Brackenridge, Kentucky printed decisions, 02 ; Craig v. Hawkin’s Heirs, 1 Bibb, 53; Green v. Watson, 1 Bibb 107, 108 ; Calk and Wear v. Stribling, Ibid. 123; Webb v. Buford, 2 Bibb, 259; Greenup v. Lynes’ Heirs, 2 Bibb, 371 ; Mercer v. Irvin, Ibid. 478; Smith v. Watson, 3 Bibb, 153 ; Carland v. Rowland, Ibid. 127, Stephens v. Hedden, 4 Bibb, 108; and Morrison’s v. Craighill’s Heirs 4 Bibb, 380.
    No entry can answer as notice to others, which is destitute of reference to some certain object of general notoriety, and a direction which can be pui’sued from thence to the beginning. Key v. Matson, Hard. 70, 73 ; Moore v. Whitledge, Hard. 90 ; Crow’s Heirs v. Hardin’s Heir, Ibid. 493 ; Ward and Kenton v. Lee, assignee of Young, 1 Bibb 28 ; Hogland v. Shepherd, Ibid 122 ; Vance v. Marshall, 3 Bibb, 148; Hardin v. Hargus, Ibid. 164; Harrison v. Johnson, Ibid. 165 : Fowler v. Halbert, 3 Bibb, 359.
    By these rules, in part, and others to which we shall presently refer, Jones and others’ entry, on which the entry of Tannehill, in question, must be tested, depends.
    The expressions, “ supposed to be about ten miles above Todd’s road,” are. mere words of general description, intended to lead the subsequent locator into the neighborhood in which the land covered by Jones and others’ entry lay, and can not control the locative calls of the entry.
    
      We have shown that distances of objects, called for on water courses, are to be ascertained by a direct line extended from the object of notoriety to the beginning, and not by the meanders. In Johnson et al. v. Brown and Brackenridge, Kentucky printed decisions 62, the court of Appeals in Kentucky say : “ It is conceived, that in determining distances by land, to follow the meanders of water courses is too rare and ridiculous to authorize a general rule for the construction of entries; so that, in all cases where it is not otherwise expressed or implied in the entries, there can be no rational alternative, but to presume that, either a direct course, or the nearest possible route, was intended.” 71] The only exceptions to this general rule, namely, * “ that distances, on a water course, etc., must be taken on it reduced to a straight line,” are the following:
    First: Distances, between two intermediate objects called for on a road, shall be measured by the meanders, as in the case of Preeble and Vanhoover, 2 Bibb, 120.
    The second exception to the general rule, is that laid down in Hite v. Graham and Grayson, 2 Bibb, 143, cited and relied on by the complainant’s counsel. Powell’s entry, in that case, was for 2000 acres, on Harrod’s Salt Lick creek, running into the Ohio, about sixteen miles above the Scioto river. The court decided that, as the usual way of travel from one object to another, on the Ohio, was along the meanders, the distances between the objects called for ought to be ascertained by measuring the meanders of the river, because it was reasonable to presume that the locator, in calling for a distance on that stream, which was impassable by a company of surveyors, did not intend a direct line, but the usual way of travel, and, consequently, that the calls of the entry negatived the idea of a direct line being intended.
    The third and last exception to the general rule I have laid down, is that laid down in the case of Bowman v. Melton, 2 Bibb, 155. In that case it was decided, that the distance called for between two objects on a small stream were not to be ascertained, either by a right line or the meanders, but by the reputed distance, because it was to be presumed, from the language used in the entry, that the reputed distance was contemptated by the locator, when he made his entry. The intention of the locator is to govern. The general rule, 'above referred to, must, therefore, govern, and the beginning of Jones and others’ entry be sought, not by the meanders of Brush creek, but by a direct line.
    
      The distance from the termination of a right line of ten miles, in the creek, (from the point where Todd’s road crossed the creek), to the cherry tree called for, is not an unreasonable distance within which to require the subsequent locator ,to search. Henderson’s Lessee v. Long, 1 Cooke’s Tenn. 128 ; Simm’s Lessee v. Dickson, 1 Cooke’s Tenn. 137.
    *In the case of Taylor v. Kincaid et al, Hard, 82, the entry, on [72 which the entry then in question depended, called to lie on the head of Willis Lee’s branch, four miles from Leesburg,” etc. The distance from Leesburg to the head of Willis Lee’s branch, called for in the entry, instead of being four miles, as called for, was actually eleven miles ; so that the subsequent locator had to search for the beginning seven miles beyond the actual distance called for. The entry was sustained. Numerous other eases, in support of the principles recognized in these cases, might be cited, but let these suffice.
    There is a marked difference between the case relied on by the complainant’s counsel, of Haws v. Marshall, 2 Marshall, 415, and the ease at bar. In that ease the court applied the rule laid down in Preeble v. Vanhoover, 2 Bibb, 120, that distances between objects called for on a road shall be measured by the meanders ; but this case falls precisely within the general rule stated above, namely, that distances on a water course are to be ascertained by a direct line, and not by the meanders of the stream called for.
    As to the second exception, it is, “ that the location, as now claimed, extends the entry across the stream, and throws a large portion, about one half, of the land on the upper side.”
    In the construction of entries, the same rules are applied as in the construction of deeds. It is a maxim of the highest antiquity in the law, that all deeds shall be construed favorably, and as near the apparent intention of the parties as possible, consistent with the rules of law.
    In fixing the construction, the primary object will be to ascertain from the entry itself, the main intention, of the locator. Was it the locator’s main intention to appropriate no land but what lay on the west side of Brush creek ? In other words, was it his intention to make the creek, on its west side, one of the boundaries of his entry ? If such was his intention, he has omitted, in the description giving or describing the boundaries of his entry, to insert a single word indicative of such an intention.
    * May we not, therefore, safely infer that the locator intended to [73 appropriate the identical lands embraced within the specific calls of his entry, as well those lands which lay on the east, as those which lay on the west side of the creek. There was nothing in the law which prohibited him from extending the entry across that creek. The call to lie on the west side of the creek can not, control the specific boundaries called for in the entry. The main intention of the locator was to extend, from his beginning, west, 400 poles, thence, and from the beginning, north, for quantity; and, as subsidiary to that main intention, his entry called to lie on the lower side of Brush creek ; and the question is, which must govern ? the main, or the subsidiary ?
    Wherever an entry, by any reasonable construction, can be sustained, the court will sustain it.
    The case of Calk and Wear v. Stribling, 1 Bibb, 122, 124, cited and relied on by the learned counsel on the other side, fully sustains Jones and others’ entry, for all the land embraced within its specific calls, lying west of Brush creek; and as Tannehill’s entry, under which the defendants in review claim, adjoins the west end or side of Jones and others’ entry, it results, that Tannehill’s entry is good, and that there is no error in the decree complained of.
    It is conceded, that where an entry calls to lie on the east or west side of a road, a river, or the claim of another person, and there are no other calls in the entry, to control the location, or specific boundaries, the entry must be construed to lie on the east or west side of the road, river, etc., called for, as the case may be. But where specific boundaries are also given, those boundaries must not be departed from, even if a portion of the entry should be thereby thrown across the road, etc., because a specific call in an entry, as for course and distance, can not be made to yield to an indefinite call for the east or west side of a road, etc., as the case may be.
    The third, and last objection, to wit: that the entry is made on Brush creek, and the location now claimed to be established, is on the 74] East Fork of Brush creek, I do not deem of any ^moment. Upon this point, the court are referred to the testimony, and the surveyor’s return; which, if I rightly remember them, places Tannehill’s entry, so far as respects this objection, beyond a reasonable doubt. At the date of Jones and others’ entry, the stream now called the East Fork was. by many, called Brush creek.
    W. Scott, also, submitted an argument on the same side, citing the following authorities :
    
      Shannon v. Buford, 2 Bibb, 114 , McKee v. Bodley, 2 Bibb, 481 ; 3 Bibb, 380 ; Taylor v. Kincaid and others, Hard. 83 ; 3 Marshall, 598 ; Stephens v. Heddon, 4 Bibb, 108 ; Morrison v. Cornell, 4 Bibb, 380 ; Smith v. Walton, 3 Bibb, 23 ; Carlan v Rowland, 3 Bibb, 127.
   Birchard, Judge.

This bill raises the question, whether Tannehill’s entry, No. 1326, was too vague and uncertain to appropriate the land claimed by respondents. This supposed vagueness arises from alleged defects in the entry of Thos. Jones and others, No. 1269, on which entry No. 1326, depends. Entry No. 1269, bears date Aug. 16, 1787. Tannehill’s entry, No. 1326, bears date Aug. 17, 1787 ; and Clemson’s entry. No. 2771, under which complainants claim, covers 419|- acres of the land embraced by entry No. 1326, and bears date Feb. 27, 1797. Upon the simple question of priority, the respondents have the preference, and the elder patent upon the junior entry, would be forced to yield to the elder entry, to the extent of the conflict between the two.

Entry No. 1269, is in these words; “Thos. Jones, etc., enter 1000 acres on,” etc., “ on the lower side of Brush creek, beginning at a cherry tree, marked T, supposed about ten miles above Todd’s road, running thence west 400 poles, and, from each end of this line, north, for quantity.” On the circuit, and upon trial of the original cause, it seems the Judges who tried it were, upon a careful consideration of the testimony, satisfied that the starting point for Jones’ entry, to wit., the c-herry tree, was sufficiently identified as a localive call, and that the general * call was an object of such notoriety, and suffi- [75 ciently accurate, to enable any subsequent locator, exercising proper diligence and caution, to find the entry, and avoid an interference.

Upon review we should, as a rule of practice, treat such finding, upon the facts, with not less respect than we would the finding of a jury, upon a matter of fact fairly submitted to them; and we would not reverse that finding, upon a mere difference of opinion as to the weight of the evidence. If the party thought the facts of the case wrongly determined, he should have asked a rehearing, rather than pursue a bill in the nature of a writ of error. But, with the finding of the facts in this ease, we are not dissatisfied. The proof seems to sustain it. The cherry tree, standing on the lower side of Brush creek, distinctly marked so as to be seen at some distance by a person passing up that side of the creek, is established by the testimony. Brush creek, and the crossing of Todd’s road, were objects of notoriety at the date of the entry. This crossing is found, by actual survey, to be thirteen miles and ten poles, in a right line, from the marked eherry tree. Following the meanderings of the stream the distance is still greater, as is shown by the survey. It is urged, that this disparity is so great as to render the entry invalid. In determining whether this position is well taken, let us consider, first, what a subsequent locator would have understood from the descriptive words of this general call, “ supposed to be about ten miles above Todd’s road.” In the first place the distance would not be understood to have been precisely ascertained. The language used would warrant no such inference. “ Supposed ” indicates, very clearly, that the distance was put down, not from actual measurement, but as a matter of opinion, either of the locator, or those who were possessed of some general knowledge of distances in that part of the forest. Again, would he have been misled by the greater distance, as found by meandering the stream ? Undoubtedly this would have been the case if Brush creek had been a large stream, and the usual route of travel were upon its 76] banks ; for, in that case, the subsequent * locator would have so understood the distance to have been estimated. The stream, however, is small and fordable, and irregular in its course, and its banks were not the route traveled; hence the subsequent locator would, necessarily, have understood the distance given, to be a supposed distance of about ten miles, by a direct line, from Todd’s road to the cherry tree, called for as Jones’ first corner. The tree being, then, an object of notoriety, marked, and standing on the west bank of the creek, reasonable diligence and care would have enabled Clemson, in 1797, after the entry was surveyed, to discover the 1000 acre tract. The ten miles would have brought him into the neighborhood. About ten miles, which, as distances are usually estimated ia the woods, may mean twelve or more, would have brought him on to the stream at a point where, if he followed the right bank upward, he could not have gone far enough to include the area required to fill his warrants, without, necessarily, coming upon the marked cherry, which was well known to other locators at that time.

In Johnson v. Pannel’s heirs, 2 Wheaton, 206, it is held “that entries, made in a wilderness, most generally refer to some prominent and notorious natural object, which may direct the attention to the neighborhood in which the land is placed, and then to some particular object exactly describing it. The first of these is denominated the general or descriptive call, and the last the particular or locative call of the entry. Reasonable certainty is required in both; if the descriptive call will not inform a subsequent locator in what neighborhood he is to search for the land, the entry is defective unless the particular object is one of sufficient notoriety. If, after having reached the neighborhood, the locative object can not be found within the limits of the descriptive calls, the entry is also defective. A single call may, at the same time, be of such a nature as to constitute, within itself, both a call of description and location.”

Subsequent locators are bound to use care. If they overlook an elder entry it is their own fault, provided the calls of that entry be such that, with reasonable care, they might have * identified the [77 land appropriated. There seems, from the testimony, to have been no difficulty on this point.

In the case of Garnet and others v. Jenkins and others, 8 Peter, 75, the court remark : “ Some of the witnesses say that, being at Bryant’s Station, with the calls of Garnet’s entry to direct them, they could have found his land on Lecompt’s Run without difficulty. If this were correct, the entry must be sustained, for it is the test by which a valid entry is known.” Now, it is stated by Wade, in the ease at bar, that “ any one wishing to find the beginning corner' of Jones and others’ entry, with a copy of the entry in his hands, could not fail to find the cherry tree, marked T, called for as the beginning corner.” It is stated by this witness, who was present when Jones’entry was surveyed, in 1793, four years before Olemson’s entry, that no difficulty was experienced in finding the chérry tree called for ; and it would appear from his testimony, and that of Yincenhaler, that this tree was notorious, and the locators of that period well acquainted with its position.

A second objection is, that the location, as now claimed, embraces land on both sides of the stream.

If this was the manifest intention of Jones, the objection is not a serious one. What his intention was, is to be gathered from the entry, which should be favorably construed. We must take into consideration the whole entry, and thus gather the intention. The description given, is: “ Beginning at the cherry tree, marked T, (which stands on the lower side of Brush creek,) running thence west 400 poles, and from each end of this line, north, for quantity.” Would a surveyor meet with difficulty in running this tract of land? The base line is given. It is a line 400 poles in length, drawn west from the cherry tree. The side lines are each 400 poles, to be drawn at right angles, on the extremities of the base ; and a line, parallel to the base, drawn to intersect the side lines at their northern extremities, closes the survey. Where is then the difficulty, admitting that Brush creek divides the tract ? It was a stream that afforded no obstacle to the survey of this, or of any adjacent entry. Its banks are not the boundaries of 7§] any of the then unascertained Clines. It is called for or needed, only, to determine the starting point. But preceding this specific description, are the words: “Jones, etc., enter 1000 acres on the lower side of Brush creek.” Hence the claim, that the entire tract must be found on that side of the creek. Were the stream navigable, and the descriptive calls of the entry less certain, the discrepancy might create a serious difficulty. Yet, take the whole entry together, and apply to it the facts of the case, and the intent of the party could be gathered with certainty,by regarding attentively the specific boundaries. The general call for the lower side of the creek must yield to them.

In Massie v. Watts, 6 Cranch, 148, it was hold, that 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. Yet, if this were not so, the entry would be good for all that portion of Jones’ survey lying west of the creek, and that is all that is necessary to fix the starting point of Tannehill’s entry.

The remaining objection, is, that the entry of Jones is on Brush creek; whereas the actual location is on the East Fork of Brush creek. The question upon this poiut is, not which branch is the main stream ; not which is the largest or longest, nor what is the name they now bear; but, simply, what stream at the time was known as Brush creek? The proof tends to show, that what is now called the East Fork was, in 1787, supposed and reputed to be the main branch of the stream, and was so considered, in 1797, when John Clemson made his entry. It was so found upon the circuit. With that finding we are satisfied.

Bill dismissed.  