Lessee of Hunter v. Meason

By the Court. The plaintiff is clearly barred from recovery by the express terms of the- limitation act of 26th March 1785, § 5. *2 St. Laws, 282. It must not however, be under- „ stood, that in every possible case, a survey must be pro- I0° duced by the plaintiff in ejectment. An island described with [108] precision in a warrant, does not seem to be within the mischiefs intended to be prevented by the limitation act. So the adversary preventing a survey by force, may hinder in this instance the operation of the prohibitory words of the law. But it must appear in general, that the party has done all in his power to effectuate a survey; and failing herein, his negligence shall bar him. Upon the most precise and descriptive warrant or application, it is the duty of the owner, to shew the lands intended thereby, to the surveyor, and to furnish provisions and chain carriers, or pay the expences thereof. If a survey is made, with which he is dissatisfied, he should without delay, complain to the Surveyor General or Board of Property, and pray for redress, otherwise the survey will conclude him. But it is certainly true, that the deputy surveyor may execute such warrant or application in his hands, without the personal attendance of the owner, or any one in his behalf. Should he do so, the owner becomes subjected to his acts, as he thereby discharges the office of an agent for his principal, unless there is some fraud in the case. Cited in 5 S. & R. 187 to show that if the owner of a warrant is dissatisfied with the survey, he should without delay complain to the surveyor-general or board of property, and pray for redress, otherwise the survey will conclude him. Cited for the same purpose in 4 W. & S. 80. Cited in 43 Pa. 204 to show that it is the duty of the owner of a warrant to point out to the surveyor land to be taken up. Messrs. Young and Haddon, pro quer. Messrs. J. Ross and Meason, pro def. If the surveyor shall refuse to execute the survey on the lands being shewn to him, and an offer to pay th'e expences attendant thereon, a complaint should be made in a reasonable time to the Board of Property, who will direct a special order to issue; and the deputy surveyor will be subjected to a removal from office. These principles are founded on good sense, public convenience, and a regard to the common safety, and are the common law of the country. Judging by these rules, the plaintiff in every point of view, is precluded from recovering the premises in question. The plaintiff’s counsel suffered a nonsuit.