And at the July term of the said court the said decree was made final; from which decree the defendant appealed, and the cause having been argued in the court of appeals at this term, the following decree was pronounced:
By the Court.In this cause it appears that the appellant relies solely on his legal titles, and the appellee on his locations with the commissioners and surveyor, which are of prior dates to the titles of the appellant; therefore that the investigation of the court maybe confined to those locations, as the appellee was complainant in the original suit, and as it appears that the location of the appellee with the commissioners is materially different from that of the surveyor, it seems by the land law he is authorized to rely on his last choice,''and is thereby restricted to it; and that his location with the surveyor can not be aided by his location with the commissioners, farther than they agree with each other. And it may be added that in this case the restriction might have been advantageous to him, but can not be injurious, inasmuch as the oourt is decidedly of opinion that the place of the actual settlement called for in his location with the commissioners (to say nothing of its want of notoriety) has not been satisfactorily identified. •
In his location with the surveyor (the Middle fork of Cooper’s run having been called for) the expressions “including two springs, one in the said creek, and the other on the east side of the same,” is evidently the leading or principal call therein; it being the one which is not only the most certain and definite, from the nature and situation of the objects it specifies, but also the call which from any rational construction of the location must govern all its other calls, so as to ascertain the exact situation and form of the land.
These springs not having been shown by the appellee, the court is of opinion that his claim to any of the lands of the appellant can not be sustained. And that his pre-emption, for which he obtained a certificate from the commissioners, and paid the price thereof to the commonwealth, is unluckily lost by the mismanagement of himself and his agents.
Wherefore it is decreed and ordered, that the decree of the court for the said district in the said cause rendered, be reversed and held for naught; and that the said appellee pay unto the said *345Mcíllanahan (appellant) his costs in this court expended. And it is further decreed and ordered that the'original suit of the appellee in the said district court be dismissed by the same, with costs, etc.