Zerbe v. Schall

The opinion of the Court was delivered by Gibson, C. J. —It is a general rule that the owner of a location shall not be prejudiced by the deputy’s negligence, in respect to returning the survey; but the omission to have it returned shall be imputed to the owner, where he has not paid the fees. That is the extent to which the decisions have gone ; for it certainly has not been determined, that payment of fees releases him from further attention to his title. In Star v. Bradford, it is declared to be the business of the owner not only to have a survey made, hut also to bave it returned ; and in Addleman v. Masterson, it is said, that payment of fees and even return of survey are but facts to repel a presumption of abandonment. But is such a presumption, when raised by twenty-nine years of continued inaction, repelled by payment alone? In Lilly v. Pascal’s Executors, it was said by Chief Justice Tilghman, that “ on an application and survey no money was paid, and it might very well happen that after the survey it might be evident that the land was taken by some prior right.” Might it not so appear as well when the fees were paid before the survey, as where they were not ? “ No doubt,” continued the chief justice, “ this has often happened. Many abandonments have been made in such cases, nor can any reason be assigned against them.” Now, what is a subsequent appropriator to think, who, at the end of twenty-nine years, finds marks on the ground, and yet no survey returned ? Certainly, that the locatee had discovered something which induced him to believe his title unworthy of pursuit, whether the survey were paid for or not; for he could not suppose that he meant to hold the state bound for an indefinite time, while he himself was at liberty to reject the land or to retain it: or, if he did suppose it, he would know that such a motive is itself equivalent to abandonment.. The survey, in the present instance, had been suffered to lie dormant in the deputy’s office, for the period I have mentioned; and the owner of it was undoubtedly chargeable with supineness. The same degree of attention which men ordinarily pay to their property, would have brought him to a knowledge of the officer’s delinquency, and imposed on him the duty of giving notice of'his title by compelling the return to be made, or by going into possession. To have winked at the officer’s misconduct would have implicated him in the consequences of it. He may not have been aware of the fact; but his bare inattention may have operated to the prejudice of others. A due respect to his interest ought to have made him acquainted with [141] the state of his title, and induced him to have the official notice of it perfected. Having been guilty of laches, therefore, to the prejudice ,of the plaintiff, who entered subsequently as an improver, and without notice of any prior appropriation, his title under the location and survey was justly postponed. Judgment affirmed.