this account, erroneous, and a patent cannot issue for it as it
now stands. So far the caveators succeed. But then, they
insist that in correcting the certificate the place of beginning
must be retained, and, of course, no land shall be retained
except about three acres lying on the north side of the aforesaid
Great Fall branch that is, the defendant shall have only about
three acres of his original tract and the first vacancy thereto
added by the resurvey containing three acres more, although
it is manifest from the evidence that the main intent of the
resurvey was to take the other vacancies, containing 62¾ acres
in addition to the original, which contained 78 acres.
Should the caveators succeed in consequence of the
rigorous observance of a rule, the result will be this; the
defendant will loose about 125 acres for which he has paid and
to which at the time of the survey, the caveators had no
pretension whatever, and which the said defendant at the same
time might have secured by making two surveys instead of
one, provided he had known of the interference and situation
of the Great Fall branch, which as appears from the evidence
was unknown at that time. Such a result assuredly would
not be considered to be consistent with the principles of
equity, on which the chancellor is directed to decide all disputes
in this office. But the truth is, that no such rule was ever
established or even laid down confining the party to his first
place of beginning and thereby depriving him of that, which
was manifestly the object of his surveys; and the true rule
dictated by common sense, is that where a man has in one
survey included two distinct unconnected tracts, both of which
were equally liable to his warrant, and at the time of the
survey not located or affected by the warrant of any other
person, the party shall take his election.
In the present case the party elects to take the land lying
to the southward of the said Great Fall branch, and it is
thereupon adjudged and ordered, that the caveat be and it is
hereby ruled good, and that the certificate of Prospect
Valley and the certificate of the resurvey thereon called Mount
Vernon, be corrected by excluding such part thereof as lies
on the north side of the Great Fall branch, and that the
surveyor of Montgomery county make the said correction, and
return the corrected certificate along with the originals to this
office.
¾¾
THOMAS C. WILCOXEN )
agt. ) Caveat in the Land-office;
THOMAS EDMUNDSON, jun.) Dec. 9, 1802
This appears to the chancellor an important case, on
account of the principles on which it is to be decided. It is
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