
    HOGGAT v. M’CRORY & GILLASPIE.
    The first enterer is entitled to have his entry surveyed in the manner directed by law notwithstanding part of the land may be covered by a grant founded on a later entry.
    Bill in Equity.—The plaintiff claimed by a deed of conveyance from Bradley whose claim is founded on the folowing entry of a pre-emption right, "No. 370 March 23, 1784, Edward Bradley enters a pre-emption of 640 acres of land, lying on the head of a branch that runs into Stone's river, about one mile above the Station, including the Cave spring on the north side of the trace marked E.B." upon which a survey was made August 10, 1790, and a grant issued, Nov. 27, 1790, No. 348. The Plaintiff claims the land, a view of which is exhibited in the annexed plat by the lines A B C D E F G H I. The defendants contended that the plaintiff's claim did not cover the land included within the lines H I J K and if it did, that the plaintiff could not hold consistently with the principles of law, against the claim of the defendants.
    The Defendants claim, by virtue of a military warrant, No. 1984, entered in the name of Thomas M’Crory, assignee of Jonas Reaby, 640 acres of land lying on the west side of Stone's river on the upper side of the first big branch, above the old Station, running up the river and west ;" entered December 31st, 1785, which was surveyed on the first day of April, 1786, and represented by the lines, J K L M, upon which a grant issued on the 10th of July, 1788. The defendant (M'Crory) sold that part of the land now in dispute, to the defendant, Gillaspie, with other lands adjoining. The lines, E N O H, represent Wm. Moore's pre-emption.
    
      
    
    Lewis, for the defendant
    contended, that the entry of Bradley under whom the plaintiff claim, was vague, inasmuch as it did not decscribe in what part of the land the spring should, be included. If the entry were not void, it was clear that the spring ought to have been include in the centre of a square: this is the most rational construction of the entry so as to give all subsequent enterers a fair and equal chance. Make the spring the centre, Bradley could not interfere with the claim of M'Crory. Bradley regarded in his running the older entries and surveys of Buekhannan, Todd, and M'Murray, which conti- nued from his begining at A until he came to E why did he disregard Moore's, and run 114 poles into that and through the whole length of his survey? A man is not bound to run in a square or an oblong not ex- ceeding in length twice its breadth, if he be confined by older lines-But an enterer has his election whe- ther he will be confined by older lines or not; if he chose to depart from this principle, and run into older claims, he is as much bound to run in a square an oblong, as if an older claim did not exist in the neighbourhood at all.
    Clearly, then, when Bradley departed from the principle of adhering to older lines, when he ran into Moores, he was at least bound to run in an oblong, not exceeding in length twice the breadth. In this case he would not have interfered with the defendants claim, the nearest part of which is 490 poles from the western boundary of Bradley's tract, and 324 poles east from Bradley's spring. The intention of an entry is to give notice to mankind where the enterer designs to appropriate his land, so that others may know how to enter. How could any man suppose that Bradley, entering as he did," to include the spring," would run down to Stones river, and take land 450 poles east of the spring. Such a construction of this entry must leave all subsequent entries in jeopardy. It is but fair that prior enterers should give those who come after an equal chance.—Equality is justice, and justice is law. The fair construction of this entry, would compel Bradley to place his spring in the centre of a square, at least he should not be permitted to run further than 452 poles, the duplicate proportion of the side of an oblong of 640 acres; Bradley has voluntarily assumed the line, E. F. as his western boundary. running an oblong east from thence, would not come within 38 poles of the defendants line. It was doubtful whether the survey, as actually made by Bradley, included the land in dispute; the jury have found that it did, but that finding does not bar an investigation of the law arising upon the entries and surveys. If Bradley were not authorised under his entry to run so as to take the land, in dispute, he cannot now obtain a decree for 38 1-2 acres which is in dispute.
    Every individual in the exercise of legal rights, must so de mean himself as to give an equal opportunity for the exercise of similar rights in others.
    If the plaintiff were permitted to prevail in the recovery of this land under this entry, no subsequent enterer could be safe so long as there was an older vague entry in the neighbourbood. The latitude of running which the plaintiff contends for, under Bradley's entry, will lead to endless uncertainty and perplexity. For aught that could appear to subsequent caterers to the contrary, Bradley might have designed by his entry to run 450 poles, north, south, or West of the spring, as well as that distance east.-can it be possible, that the law could have designed to leave the rights of citizens in such a state of confusion and uncertainty as this?
    Overton, for plaintiff,
    argued c contra, he relied upon the preference given by the laws, to older entries; the injunction on surveyors to survey older entries first; that the older enterer should possess every advantage which he could have possessed, in case the surveyor had performed his duty, in making Bradley’s survey, before M’Crory’s which by law he was bound to do.
    
    
      
      It has never been the practice of our courts orjuries to construe entries by equity or presumption requiring surveys to be in a square whenentries did not call for it. See Add. R. 216
      Otherwise in Kentucky. See Hard. R. 10 15 497 367 411.
    
    
      
      Hard. Rep 12 194 568.
    
   Per Curiam.

The jury have found that the land in contest, is included in the survey of Bradley; the only question is, whether Bradley or those who claim under him, can hold the land under the entry. It appears that M’Crory not only surveyed, but that he got his grant before Bradley surveyed.

This we believe does not deprive Bradley of any advantage which the law gave him on account of his having the oldest entry. The surveyor is directed by law, to survey the oldest entry first, and if he does actually survey a younger entry before an older, it should not place the first enterer in a worse situation.

Bradley’s survey was bounded by older claims; by Buckhannan’s, Todd’s, & M’Murray’s. His runing into Moor’s made no difference to M’Crory; for it does not appear that he got his quantity, including the interference with Moore. Whatever distance the surveyor might think proper to run Bradley’s claim to the west of the spring, did not injure M’Crory—he is therefore not competent to an objection on this account. The most proper point of view, in which to consider this question as it respects the objections of M’Crory, is whether Bradley could include this land, by runing an oblong, east from his spring, barely taking it in—he certainly might, for it is but 450 poles from the spring to the river. This is the most favorable point of view, in which it can be considered, for the claim of M’Crory. An oblong would have included it, and inasmuch as the part of Bradley’s claim, which lies to the west of the spring does not interfere with M’Crory, his claim can derive no validity from this source.

The defendant must convey to the plaintiff. 
      
      Note. The defendants produced John Buckhannon, the surveyor of both Bradley’s and M’Crory’s claims, to prove what he intended in making Bradley’s survey,
      Sed per curiam.-The survey is matter of record, which, speaks for itself. It would be of dangerous consequence to admit the proof now offered. We cannot admit the surveyor to explain his own act, so as to contradict the rcord.
      In this case it was contended on the part of the defendants, that agreeably to the decision at Jonesborough, some years ago, the bill ought to be dismissed, as the plaintiff had his remedy at law.
      Sed per curiam. Before the passage of the act of 1786, C. 20, the plaintiff had his remedy in equity, and it is not taken away by this act, He has an election to bring his suit at law or in equity.
      The principle of this case does not accord with the decisions in Kentucky, as laid down in Hughs’ and Harden’s Reports, but is conformable to the verdicts of juries acquiesced in by our courts, and is agreable to the manner of running out lands by surveyors in this State, previous to the compact with N. Carolina, in 1803. This decision is also conformable to the practical construction put on the land laws by the citizens of North-Carolina, as appears from the following certificate of Col. Christmas, the principal surveyor of the first district, who was appointed a surveyor in N. Carolina immediately after the passage of the Land-Law, of 1777, and acted as such, within the limits of what is now three counties in that state ; he continued in the exercise of that office, from the year 1778, till about the year 1793. His observations are, that" according to the usage of citizens of N. Carolina, from the year 1777 ,under their entry laws, an entry calling to adjoin some notorious line, or for some notorious point to be included, was considered as special enough. That agreeable to the usage of surveyors in N. Carolina, from the year 1777, they surveyed the oldest entries first, when they interfered with or lay contiguous to younger ones-That according to said usage, when they surveyed an entry having a special call, and not restrictive as to boundaries, and could not survey it in a square or oblong on account of older claims, they bounded their surveys on such older claims in any form to the cardinal points ; taking care to embrace the quantity of land called for hi the entry-It was also the common usage among surveyors in N. Corolina, to survey the oldest entries first, to include the quantities called for in the entries by running into any contiguous lands which were not appropriated previously to the entries to be surveyed ; and in making such surveys the square or oblong form was departed from when constrained to do so by older claims-In making surveys in North Carolina on younger entries, it was also the usage of surveyors from the year 1777, to run out such younger entries so as not to interfere with an older entry, or first survey, let the calls of the younger entries be what they might-It was also common for surveyors to call on the enterer to shew the land entered, and to permit him to point out such beginning, as he desired taking care however to comply with the specialties called for in the entry. Wm. CHRISTMAS.”
      “I surveyed in several counties in the State of North-Carolina, from the year 1794, until the year 1804, and in making surveys by virtue of entries, I was governed generally by the principles above stated. JOHN STROTHER.”
      As to the effect of usage and precedents, in law vide 16, Vin. Ab. tit. precedents ; Jenk. Cent 162. pl. 9; 1. Call. 210 ; Maryland Reports 67. 86. 131. 212 ; 2, Massa. Rep. 477 ; and the opinion of Ch. J. Parker, in 1. P. Williams, 399, 452. The rule laid down by Edwards, Ch. J. in delivering the opinion of the court of appeals in Kentucky, appears to be the correct one, “ that the principles of the statute law, and not the general principles of Equity, must govern courts of Equity in deciding on land claims. Decisions of courts of Equity, must have for their basis the meaning and spirit of the land laws. See Hardin’s Reports 472.
     