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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 475   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT.475

 

has laid it down, not as a legitimate principle, I presume,
for his subsequent reasoning shews that he does not intend
it in that sense, but as a current and tolerated practice, that
a person possessed of one acre of land warrant may upon that
authority make a survey of any extent whatever; admitting
at the same time that if such person's right should be
questioned, or come in competition with a right acquired under
an entire warrant, &c. it would stand on insecure ground.
This is, perhaps, the best footing upon which the chancellor
could place the matter, unless he undertook to controul and
regulate it by his decisions; but it is not the footing upon
which it ought to stand. I have stated, as a general rule in
the ancient practice, that warrants were not to be exceeded.
I am supported in this position by various authorities, and
among the rest, by the instructions to surveyors, which
directed as they do even at present, that a warrant should " by
no means
" be exceeded, except it were for the purpose of
taking in all the vacancy lying between patented or surveyed
lands. This shews that the privilege of surveying any
quantity of vacant land whatever, even under an entire warrant,
was not and is not recognized: for the present instructions
are, in this article, copied verbatim from the former ones. I
have stated that a survey, if it had exceeded the warrant, was
to be annulled, or, if done without the direction of the party,
to be corrected. In order that I may not seem to lay down
mere dogmas, in a matter which subsequent practice has made
so questionable, I will mention explicitly that this rule, in the
positive form in which I have given it, is drawn from a small
collection of notes concerning the practice of the land office,
found in a book of precedents, &c. in the hand-writing of the
late Thomas Jenings, esq. who had in his youth been a clerk
in the land office. They refer, necessarily, to a late period of
the provincial government: I have considered them,
therefore, when corroborated, or not contradicted, by the records,
as good authority relative to the practice, so far as they go.
But, it has been acknowledged, on more certain, and I
suppose later authority, viz. the instructions of 1768, that cases
were contemplated in which a warrant might be exceeded, and
patent still permitted to issue. In short, it never was, I
believe, in the power of the proprietary government, consistent
with its views in respect to the sale of vacant land, to prevent
warrants from being in some degree exceeded; but the
privilege of exceeding them at pleasure was never recognized.
How then should it be understood at the present day, when
no law or regulation sanctions it, that a person getting hold of
the smallest particle of a warrant may proceed as if he had
the most express authority for making a large survey? But,

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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 475   View pdf image (33K)
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