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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 476   View pdf image (33K)
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476 LAND-HOLDER S ASSISTANT.

 

the practice has arisen, and the question is by what means it
has done so: I presume it is in the following way: The
instructions to surveyors, while they direct positively that a
warrant shall not be exceeded, except in a given case, make that
case to be where a survey cannot be confined to the limits of
the warrant without leaving out adjoining vacancy lying
between patented or surveyed lands. The original intention of
this was that small, inconvenient, and unsaleable slips of land
should not be left on the proprietary's hands: but now, all
vacant land, with little exception, lies between, or is
surrounded by, patented tracts: and, under this proviso in their
instructions, the surveyors conceive themselves at liberty to
take in all the land they can find, without regard to the
quantity expressed in the warrant. The main part of the
instructions thus becomes a nullity, and the exception to a positive
rule supercedes the rule itself. But, to return to the splitting
of warrants into minute parts, the chancellor, in the case
aforesaid, admits that a survey made in this way, or under a
warrant already expended, would probably, on caveat, have to
give way to a survey made under less doubtful authority;
and here I must leave the matter; for, it is not for me to
judge whether the roles of the land office are to rest on their
own basis, or on their accidental vindication by parties
interested in enforcing them. But, in laying down the actual
rules of the office, I cannot state it as an acknowledged and
legitimate rule that persons may, by assignment or otherwise,
divide a warrant into as many parts as they please, and
institute so many distinct surveys, without regard to the quantity
expressed in the warrant. I can only admit it to be a
common practice, which the examiner does not question, and
which the judges of the land office do not notice, except in
the particular cases in which it comes before them by caveat.
What I consider as regular and allowable divisions of
warrants are those which are indicated in the instructions of
1712, before referred to.

    The instructions of 1768 do, it is true, admit of a party's
making several successive surveys until his warrant is
expended, but do not give a shadow of authority to the practice of
splitting warrants by assignment, or even without
assignment, for the express purpose of originating, at one and the
same time, a number of different surveys, and with the
intention that each of the divisions shall be exceeded. As to the
privilege of exceeding warrants, or parts of warrants,
considered in itself, and without reference to the absurd divisions
and assignments which have been described, I have stated the
former practice by way of information, chiefly to those who
have the regulation of such matters, and have endeavoured
to shew how it has advanced to its present unlimited state.



 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 476   View pdf image (33K)
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