It appearing that the entry on which the claim of the defendant is founded, is of prior date to that of the complainant’s entry, the first question will be: Has this entry been made as the law requires, and how ought the survey thereon to have been made ?
The entry calls for a cabin and cleared land, and a spring running a south-east course, and a beech tree marked I E.
It seems to the court, that the two first calls have been sufficiently identified, and that they were sufficiently notorious when the entry was made to give it validity. But as two beech trees marked I E, at a considerable distance from each other, are [proven, it seems to the court that the last call is too uncertain to be regarded; therefore, the court is of opinion that the survey on this entry should have been made in a right-angled form, and as much longer than wide, as the cabin and spring are distant from each other, and so as to include the spring and cabin at equal distances from the sides and ends thereof in which they are respectively placed. -On considering a similar question relative to the entry and survey of the complainant, it seems to the court that all the calls of his entry have been sufficiently identified, and that they were sufficiently notorious when his entry was made; and from inspection of the surveys returned, it seems to the court that the complainant’s survey, though it is not made altogether agreeable to entry, does not include more of that part of the defendant’s survey, which has been made contrary to entry, nor does it include it, otherwise than it would have done, if it had been made in any other manner to comply with the calls of his entry, taken in consistency with each other, and also in a legal form, so far as these calls would permit. Therefore, the court is of opinion that the complainant ought to recover from the defendant all the land included in his survey, which is included in the defendant’s survey, and which will not be included therein when the entry on which it was made, is surveyed as above specifiedWhereupon it is decreed andy-ordered, that the complainant do recover of the defendant all the land which will be included in the survey, when made agreeably to the foregoing opinion, and which is now included within his present survey.
And now at this term, the surveyor’s report having been returned, the defendant was decreed and ordered to convey to the complainant the interference, amounting to 20J acres, and to pay costs.