Lessee of Steinmetz v. Young

Tilgiiman C. J. after stating the case, delivered the judgment of the court. There is no doubt but that prior to the year 1767, a survey of 300 acres might have been made on a warrant for one •hundred; such was the practice of the land-office. But in the-year 1767, the board of property made an order, that no survey should be accepted, containing more than ten per cent, surplus above the quantity called for by the warrant, with the usual allowance of six per cent, for roads &c. An act of assembly to the same effect was made in April 1785; but as it has been expressly decided by this court in the case of M'Ginnis’s Lessee v. Albright, December 1799, that this act does not extend to any part of the state, but that which lies within the last purchase from the Indians, it has no bearing -on the present case. Judge Smith who had great experience in the business of the land-office, and was himself a deputy surveyor before the revolution, mentions in his charge, that he had himself surveyed 400 acres on a 300 hundred acre warrant, after the year 1767, which'had been accepted, the party paying for the surplus; and that he knew of no instance, where a survey containing more than ten per cent, surplus had been rejected by the land-office, if it did not interfere with the rights acquired by others, before the return of the survey. It is certain that the proprietary officers were in the habit of sometimes dispensing with the general rules of office, where no injustice was done by it; and it is a striking feature in the present cause, that in the year 1761, Grouce considered himself as entitled to 300 acres on this warrant. At that time, he might have had his 300 acres surveyed; and if it was understood in the neighbourhood, that he meant to take 300 acres, or there were any lines, or marks, by which [524] notice was given of the extent of his claim, I think it highly probable, that the proprietary, officers would have accepted a survey for 287 acres, after the year 1767, provided he had stated his case to the board of property, and made it appear, that no other person had acquired an interest in the surplus. The acceptance of Such a survey was a matter between the warrantee and the proprietaries. No third person could be injured. Nor has the present defendant the least particle of equity in his case. What is it to him whether the plaintiff had more or less land included in his survey? . I have endeavoured to ascertain the practice of our own land-office, since the revolution; and it appears that many surveys have been accepted, made since the year 1767, on old warrants, containing more than ten per cent, surplus. Considering all the circumstances of this case then, without laying down any general rule, it is my opinion, that the return of the plaintiff’s survey, which was filed in the land-office, before any other person had acquired a right, and to which no objection was made by the surveyor general, gave him sufficient title to recover in this ejectment. It follows, that the judgment of the Circuit Court is to be affirmed. Judgment affirmed.