The following questions seem to be material t o *122this cause, to-wit: Are the locations of the complainants’ settlement with the commissioners, and of their settlement and preemption with the surveyor such as the law requires ?
Second. Have their settlement and pre-emption been surveyed conformable thereto, and if they have not, how ought they to have been surveyed ?
Third. Which is the superior claim, that of the complainants, or that of the defendants?
Fourth. It may also be a question, did the defendant, Gatewood, purchase the land in contest from the defendant, Bradford, pay a valuable consideration, and get a conveyance therefor, before the said Gatewood had notice of the claim of the complainants thereto, and if so, has he thereby acquired a title to the land which will avail him against the claim of the complainants ?
On the first question: It appears to the court that the objects called for in the location of the complainants’ settlement with the commissioners and surveyor, viz: the head of Cane run, .and a spring, which sinks after running about 300 yards, near a piond, and about five miles from Bryan’s station, were known to the generality of those who were conversant in the vicinage of Bryan’s station when these locations were made; and though the head of Gane run might have been uncertain, if this call had stood alone, it appearing that this water course had two or more forks, yet as it is called for in connection with a spring of a description which fits none other in that quarter, the head of Cane run intended is thereby ascertained to be the head of the north fork, more especially as it further appears that this was the only place at that time, to’which the name of the bead of Cane run had been appropriated, and that none of the heads of Cane run would so well fit the distance of five miles from Bryan’s station. Therefore the court are of opinion, that those locations are sufficiently particular and descriptive; the court are also of opinion that the location of the complainant’s pre-emption on the south and west sides of their settlement is sufficiently special and precise.
On the second question: It seems to the court that neither the complainant’s settlement or pre-emption has been surveyed wholly conformable to the location, but that the settlement ought to have been surveyed in a right angle form, and as much longer than wide as the said head of. Gane run and the said spring are distant from each other; and that they should have been respectively included in the survey, at equal distances from the bounda*123ries of the opposite sides and ends thereof; and then that the preemption should have been surveyed to adjoin the settlement thus laid off on the south and west, and so as that the south and west boundaries of the pre-emption should have been parallel to and at equal distances from those of the settlement.
On the third question : It appears that both parties claim under settlement and pre-emption rights of the kind which by law were to be located on vacant land. It also appears that the locations of the complainants’ settlement and pre-emption with the commissioners and surveyor were severally made prior to the respective locations of the defendants’ settlement and pre-emption with the commissioners and surveyor; and it further appears that the complainants’ pre-emption does not interfere with the defendants’ settlement; therefore the claim of the complainants, so far as they have proceeded justly and leg-ally thereon, must be superior to that of the defendants.
As to the last question, it will be sufficient to observe that the court does not conceive the plea of the defendant, Gatewood, if it were true, to be sanctioned either by law or equity; forasmuch as the claim of the complainants is founded on a different right from that on which the said defendant Gatewood’s is founded, and the complainants never gave their consent to nor encouraged the purchase made by Gatewood. Whereupon it is decreed and ordered, that the complainants do recover of the defendants all the land which will be included by a survey when run agreeably to the foregoing opinion, and which is now included within their present surveys. And costs.