
    Hastings v. Stevenson.
    
      Chancery.
    
    Construction of entry.
    A survey did not so appropriate lands as to render a subsequent entry void, in cases that occurred before the passage of the act of Congress of 1807.
    Land can not be appropriated without an entry, and where survey and patent include lands which the entry does not include, such land is subject to' entry as vacant land, and the patentee, or those claiming under him, shall in equity be decreed to convey to .the subsequent location.
    Construction of entry.
    This cause was heard at the May Term, 1825, in the county of Adams, before Judges Pease and Burnet.
    
      The bill states that on August 3, 1787, an entry was made in the following words; “No. 459. Captain Churchill Jones enters one thousand acres of land, part of a military warrant 2,311, on the northwest side of the Ohio, beginning at the mouth of Brush or Eighteen Mile creek, running up the river fifty poles, thence from the beginning down the river five hundred poles when reduced to a straight line, thence at right angles from the general course of the river for quantity.” That on March 17,1792, the following entry was made: “No. 2,023. Thomas McClanahan enters two hundred acres of land, on a military warrant, No. 1,863, on the lower side of Brush creek, beginning at a poplar tree, marked J. B. 1791, on a branch one and a half miles from the mouth of Brush creek, running south thirty, *east two hundred poles, and from the beginning north thirty, west forty poles, thence southwardly at right angles for quantity, of which entry, one hundred acres were surveyed on August 19, 1809, for which a patent was granted to William Eussell, assignee of J. Beasley, assignee of the said McClanahan, on November 23, 1818. That Eussell sold and conveyed the said one hundred acres to the complainant, on March 4,1819. That a survey purporting to be made on the aforesaid entry of Churchill Jones, but variant therefrom, was fraudulently made, including apart of the land owned by the complainant. That a certain N. Grimes acquired an assignment from Jones of the aforesaid one thousand acre entry, and fraudulently procured a patent therefor, prior in date to the patent of the complainant, but junior to the entry on which he claims. That John Stevenson, the defendant, having obtained a title from Grimes, for so much of the land as interferes with the prior equitable claim of the complainant, commenced an action of ejectment and recovered a judgment therefor.
    The bill prays for a decree that the defendant withdraw, or relinquish to the complainant, and for an injunction.
    The answer admits the entry in the name of 0. Jones — avers that the same was legally surveyed on November 17, 1787 — that the survey was recorded on March 17, 1788, that on October 28, 1799, a patent issued to Grimes — that the defendant has obtained a legal title to a part of said land, for which ho recovered a judgment at law in an ejectment — that N. Grimes sold and conveyed that part of the land which the defendant claims to Thomas Grimes, who sold and conveyed the same to the defendant. The defendant admits the entry for two hundred acres in the name of McClanahan ; but does not know whether it was special or legal, and that a part of it was withdrawn.
    Several witnesses were examined, but their testimony did not cast much light on the subject, pics.
    Thompson, for the complainant, contended:
    That an entry is notice to the world — that a survey is not — that if the survey varied from the entry, the land 'not covered by *the entry was vacant until a patent issued, and that a survey does not prevent an entry.
    Brush, for the defendant, contended :
    That after a survey an entry can not be made — that Jones’ entry is to be construed as calling for a base line of five hundred poles, including the fifty poles above the creek — that their survey is an amendment of their entry — that enfades may be amended, and that the finding of the jury in the ejectment established the corners by which they have surveyed.
   By the Court :

The evidence in this ease is not sufficient to enable us to make a final decree. The preliminary questions, however, on which the final decree must principally depend may now be stated:

1. It appears from the evidence, and the points conceded by the parties, that the entry of McClanahan, under which’ the complainant claims, was made agreeably to law ; neither the sufficiency nor the notoriety of its calls has been disputed. Brush creek was generally known. The poplar marked J. B., 1791, called for as a beginning, is well described. The side of the creek on which it stands, its distance from the mouth of the creek, and its situation on a run being given, a subsequent locator, by reasonable diligence might find it. And the surveyor testifies that in tracing the survey he found all the corners as described in the complainant’s deed, which appears to be a transcript from the patent.

2'. As this entry was made in 1792, and the entry of Churchill Jones was not carried into grant till 1799, it is the opinion of the court that it covered and appropriated all the land embraced in its calls, not included in the calls of Jones entry. The fact that the survey of Jones was made before the entry of McClanahan, does not affect the ease, as the entry was made long before the passing of the statute that prohibits locations on lands previously patented or surveyed. We admit that entries may be amended, but not that a survey is necessarily such an amendment of an entry as will appropriate land clearly without the calls of that entry, in opposition to a subsequent location. Were *this the case lands might be appropriated by a survey without a previous entry, notwithstanding the express requirement of the statute of 1779. It has, however, been settled by the Supreme Court of the United States in the case of Wilson v. Mason, that a survey not founded on an entry is a void act, and constitutes no title whatever; and that consequently the land so surveyed remains vacant and liable to be appropriated by any person holding a land warrant. The principle here decided seems to settle this question; for if an entry must precede a survey, the entry must cover the land surveyed, and every part of it, or a portion of it, would be appropriated without an entry. If any portion of the land, however small, may be legally appropriated without an entry, wo see no reason why an entire tract may not *be taken up in the same way. If the holder of a warrant may enter one thousand acres, and in surveying vary so far from his entry as to include one hundred acres not covered by it, he might, on the same principle, take one acre within and nine hundred and ninety-nine acres without its calls, or, as was the case in Wilson v. Mason, enter on one watercourse and survey on another. >

The terms used in the entry of Churchill Jones are somewhat ambiguous ; but we believe the true construction of it will give a base on the Ohio of five hundred poles, including the fifty poles above the creek. The mouth of the creek appears to be adopted merely as an object from which to ascertain the beginning corner, which is a point fifty polos above the mouth.

The words of the entry are : “ Beginning at the mouth of Brush, or Eighteen Mile creek, running up the river fifty poles; thence from the beginning down the river five hundred poles, when reduced to a straight line.” The word “thence” must refer to the termination of the fifty poles, and consequently the five hundred poles called for must commence at that point. The most natural construction of the language is, running up the river fifty poles, and from thence, as a beginning, down the river fUe hundred poles, etc. The same result will be had by a simple transposition of the words thence and from.

On the whole, we are of opinion that the true construction of Jones’ entry requires it to be surveyed by beginning *at a point on the bank of the Ohio fifty poles on a straight line above the mouth of the creek, and by running from that point, as a beginning corner, down the river with its meanders, to a point on the bank of the Ohio five hundred poles on a straight line from the beginning course, and from those points at right angles from the base line so far as to include the quantity of one thousand acres, the opposite lines being equal and parallel.

It is contended by the complainant that the survey heretofore made on this entry, extends further back from the river than the calls, as now construed, justify, and that it has been run so as to include a part of the land contained in his entry. On this point it is the opinion of the court that so much, if any, of the land included within the calls of McOlanahan’s entry and survey as has been covered by the survey and patent of Jones, but not included within the calls of his entry as now expounded, has been fraudulently recovered from the complainant, and that in equity and good conscience the defendant ought to release the legal title he has acquired to it by obtaining the elder patent. But as no survey has been made of Jones’ entry, on the principles here laid down, whereby the interference, if any, can be ascertained, it is ordered that the surveyor of Adams county execute a survey of that entry agreeably to the directions herein given, and return the same to the clerk of this court.  