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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 484   View pdf image (33K)
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484 LAND-HOLDER S ASSISTANT.

 

book; and if such location is sufficiently precise, according to
the general rule on that head, it binds the land therein
described; but, if vague, merely enables the surveyor to
proceed; and the land is, in that case, secured by the actual
survey, and not before. The object of all location, previous to
survey, is to bind the land therein described from the
operation of other warrants. The date of a common warrant is,
in this respect, immaterial, except that in applications at the
same point of time for the same location, the elder warrant
ought in reason to be preferred. In a word, locations of
common warrant by the surveyor are good and binding for its
expressed quantity of uncultivated vacant land, sufficiently
described, and not covered by previous location either of
common or special warrant, for the latter may bind land
cultivated or otherwise. It is proper here to remark that the
instructions to surveyors, while they prescribe the form of location
of common warrants, do not say a word concerning the
location of special warrants; that being a matter which is always
to be done in the land office. If it is said that the surveyor,
without making a new previous location, may make an actual
survey of cultivated land not designated in the special
warrant, I answer that no written rule, from the first
establishment of the land office to the present day, gives that
privilege, and that the practice is therefore unauthorised. It, in
fact, defeats a very important end of location, which is, not
solely to benefit the party making it, but also, to inform other
persons of the lands already appropriated, and, by consequence,
to assure them in some degree of those that are yet free. A
person, satisfied by enquiry that no warrant has been taken to affect
a particular piece of land, prepares to take a warrant for that
purpose; but before he reaches the land office, an actual
survey is made of this land under a warrant obtained to affect
other land, and the location of the office is superceded and
defeated by the surveyor. It is true that persons may in other
ways be disappointed in their views, and that there are many
remedies or resources where they do not obtain the precise
land intended: but those disappointments ought not to be
multiplied by a licence not founded either on positive
regulations or on reason and public convenience, and tending in a
strong manner to confuse and invalidate the regular
proceedings of the office.

    In regard to the location of special warrants, on which the
surveyors are called to act, and upon which they must
sometimes exercise their judgments, the rule of interpretation
laid down by chancellor Hanson in the case before cited of
Beatty vs Orendorff, and in other decrees, is perfectly clear
and just; to wit, that the land designed to be surveyed should
be designated by such precise marks and references as that



 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 484   View pdf image (33K)
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