said he wished to know the true ground of difference. If the fact was that Harmon's entry was special, which is the presumption until the contrary appear, he should desire to know how it was surveyed, whether conformably to the entry or not. If an entry be made to adjoin another special entry, and the latter is not surveyed conformably to the entry, the adjoining enterer is not obliged to follow the mistake, but should survey as was originally intended.
It appeared in testimony that Yellow Creek headed to the south, and ran nearly north; that Harmon's claim was surveyed and granted about three miles lower down the creek than William Allen's, which the defendants claim; that Ramsey's survey adjoined Harmon above, and lay about two and a half miles lower down than Allen's. *Page 372
Anthony Foster surveyed Hogg's, Harmon's, and Ramsey's claims. The defendants' claim lies on a creek latterly called the Town Fork, which issues from a large spring, about three-quarters of a mile from the creek, where it empties itself in. Allen's claim takes in the head of the fork, lying on both sides of it, near the mouth. A number of witnesses were produced, on the part of the defendants, showing that about the time Allen's entry was made, before and some time after what is now called the Town Fork was called the first large fork from the mouth of the creek, and except two branches called Indian Creek and Racoon Creek, this was the first large run coming in on the west side in going up the creek. It was proved, on the part of the plaintiff, that these runs were now and for a considerable time past called creeks. Mr. Hawkins went to that part of' the country when it was first settled, in the year 1793, when he did not hear of any name for these runs: they obtained names after he went there. It was also proved that the Chickasaw trace, referred to in the plaintiff's entry, lay about seven and three-fourths miles from the land in dispute.