in the warrant, can, by any device, authorise a second
survey, is the question which has never been decided on caveat
in this office. It is true that where the same warrant has
been applied to two surveys, each of which contained more
than the whole quantity expressed in the warrant, and there
has been no dispute, a patent has issued on each survey, after
the certificates have been fully compounded on: and this
practice can neither be productive of wrong to any individual,
nor affect the revenue of the state.
But whether, on caveat, one warrant shall be permitted to
cover two surveys, each of which is equal to, or greater than,
the quantity expressed in the warrant, is another question,
which, as it is suggested by the circumstances in the present
case, it will be proper to decide, before any other case may
arise in which it may be material;¾and the chancellor is
decidedly of opinion that he who claims under a survey made
in virtue of a warrant which is applicable, and which has been
applied, only to that survey, must have a better pretension
than he who claims under a survey made (as it is said) in
virtue of a warrant which had before been applied to a
survey containing the full quantity, or more than, expressed in
the warrant. Let the device of splitting a warrant into two
or more parts, and applying each part to a survey containing
more than the whole warrant, be used, as it has been to
secure lands concerning which there is no dispute. The party
who thus obtains a patent has abundant advantage, in
obtaining a credit which originally was not intended to be given.
This opinion, however, is not to decide the present case,
to which, although it suggested the question, the opinion will
be found not strictly to apply.¾The case is this. Z P
having obtained a special warrant for five acres, in virtue thereof,
returns two surveys, one containing 4½ acres, and the other 5¼
acres. To one certificate the surveyor says he has applied
two acres of the said warrant, and to the other he says he
has applied 3 acres. Both certificates are dated on the same
day, viz. Oct. 17th, 1793.
Two days after this, N P obtains a special warrant of
resurvey, under which he returns a certificate, containing an
original tract, and likewise the two tracts surveyed as
aforesaid for Z P, as two pieces of vacancy contiguous to the
original.
Now, the material consideration in this case is this; that
if the surveyor had applied 4¼ acres of the warrant to the
survey containing that quantity, there would have been left
¾ of an acre, in virtue of which, agreeably to the practice
first mentioned, might be secured the parcel containing 5¼
acres.¾ What the surveyor might have done, to cover
surveys made before the date of the warrant under which the
|
