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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 395   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT. 395

register, that Hurst, a considerable time since, had returned
surveys in the said reserves, as made under his purchase,
amounting to more than 200 acres.

    Upon the whole the chancellor considers the present case
to be one of the least doubtful which he has ever known to be
litigated before any tribunal whatever, and accordingly
adjudges that the caveat be overruled, and dismissed. He has
delivered his opinion at large, for this reason, amongst others,
that what he has said will apply to other cases, and he wishes
the principles of his decisions to be well understood.

    October 19, 1792.

¾¾

          GEORGE SCOTT,   )
                vs.                       )    Caveat in the Land office.
        JOSEPH CHAPLINE.)

    THE ground of the caveat is, that the land contained in
the certificate was originally comprehended within the lines
of a tract called " Well done," but is left out by the present
running of the courses.

    The legislature having never been able to discover a
principle whereby the mischiefs arising from the variation of the
compass might be prevented, and original runnings in all cases
ascertained, has nevertheless directed that no patent shall
issue for land which, in the opinion of the chancellor, may have
been thrown out of the lines of a grant by variation of the
compass. Whether it was the intent of the legislature that
the chancellor should, for the land office, fix a ratio of
variation, cannot easily be determined. That, indeed, there is a
constant variation is certain: but, as he has never been able to
find a rule agreeably to which the running of courses at any
past period of time may be ascertained with precision;
¾as
a decision in favour of a person who enters a caveat, on a
ground similar to that of the present caveat, would prevent
the matter from being tried at law; and as a decision against
him would probably refer the parties to a fair trial at law;
the chancellor has adopted only one rule on the subject;
which is, in no case to allow the caveat unless the original
runnings or some of them be fixed by positive proof, or by
such pregnant circumstances as place the matter beyond a
doubt. This, indeed, is the rule which appears to have
obtained in the general court; and it seems the only rule which
common sense can admit; for, altho' it be certain that the
lines of every tract are, every year, changed by the variation
of the compass, and altho' it seems reasonable to make some
allowance; yet, inasmuch as the variation is different in
different places, and at different times; as no general rule can
be found, applicable to all cases, and as an arbitrary allowance





 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 395   View pdf image (33K)
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