The following decree was pronounced :
By the Court.Both the complainant and defendant claim under certificates granted to villagers. Therefore, as the defendant’s certificate is the eldest, the first question will be, has he surveyed his settlement and pre-emption agreeably to their locations with the commissioners and surveyor ? From the testimony of William Fields, William Crow and Mark Hardin, it appears that the fork of Hardin’s creek, which was most generally called the south fork thereof, is about two miles and a half or three miles above Bunton’s lick logs. Therefore, the court is of opinion, that .although other branches of that water course were, by some, called south forks, yet, as the defendant called for the south fork, and to run down the stream toward objects which lie below what was generally called so, there can be no doubt but he ought to have began the survey of his settlement at that pjace; and then, from an inspection of the surveyor’s report, it is evident, that if he had, in a reasonable manner^ surveyed his settlement, and the part of his pre-emption which he located to adjoin it on the west, he would not have interfered with any part of the complainant’s survey. But as the defendant has obtained the oldest patent for the land in contest, it will be necessary to inquire how the complainant’s settlement should have been surveyed agreeably to his locations. On which, the court is of opinion, that the complainant ought to have surveyed his settlement in a square, so that the upper line thereof would have crossed Hardin’s creek a quarter of a mile below Bunton’s lick logs (which appears to have been well known to those who were conversant in that part of the country), and at right angles to the general course of the creek, and *176then to have extended down the creek so as to include half thereof on each side of the said general course. Whereupon, it is decreed and ordered, that the complainant do recover from the defendant all the land included in his settlement when thus laid off, and for which the defendant has obtained a patent as aforesaid. And it is further decreed and ordered, that John Helm, surveyor of Washington county, do go on the land in controversy,' on the - day of--next, if fair, if not then on the next fair day, and there lay off, circumscribe and mark, by certain metes and bounds, the lands aforesaid agreeably to the above decree, and make report thereof to the twenty-fourth day of the 'next term, and the direction as to the costs is reserved until the coming in of the said report.