258 THE RAIL ROAD v. HOYE.

THE RAIL ROAD v. HOYE.

All common warrants must be lodged with the principal surveyor, and entered in
the manner prescribed; otherwise surveys made under them, will be deemed void
as against others regularly made.—No positive rule, or law can be suffered to be
made the instrument of fraud.—Where there is a material difference between the
location in the surveyor's book, and the actual survey, the latter is taken as a vir-
tual abandonment of the former.—In caveat cases, there being no appeal, it is
usual, where there is a reasonable doubt, to let the patent go, so as thereby, in
effect, to give the parties the benefit of an appeal.

THIS case arose in the land-office upon cross-caveats, the one by
The Baltimore and Ohio Rail Road Company, as the holders of a
certificate of a tract of land, called Clara Fisher, against the issu-
ing of a patent on the certificate for the tract of land, called River's
Bend; and the other by The Chesapeake and Ohio Canal Company,
as the assignee of a certificate obtained by William W. Hoye, of
the tract of land, called River's Bend, against the issuing of a patent
on the certificate of the tract of land, called Clara Fisher.

It appears, that about the 23d of May, 1828, the surveyor of
Allegany county, was requested to attend on the Potomac river,
near the mouth of Sidelinghill creek, to execute some warrants
held by John V. L. McMahon, for the use of The Baltimore and
Ohio Rail Road Company; that the surveyor, being otherwise
engaged, sent his deputy, who made the survey, as required, under
a common warrant, of the tract called Clara Fisher, on the 25th
day of May, 1828. But the warrant not having been put into the
surveyor's hands until four days after, that is, on the 29th of May,
he therefore dated the certificate of survey for Clara Fisher on that
day, and not of the day when the survey was actually made.

On the other side, it appears, that William W. Hoye, under
whom The Chesapeake and Ohio Canal Company claim, as his
assignee, having a special warrant, placed it in the hands of the
surveyor of Allegany county, 'which warrant, the surveyor says,
was by me, on the 28th day of May, 1828, located for the said
William W. Hoye, in a book kept by me for the purpose, on the
bank of the Potomac river, below and adjoining to the lines of a
tract of land, the property of Mr. Lantz, which tract of land lies at
the mouth of the Devil's Alley run; and to extend down from the
lines of said Lantz's land with the meanders of the Potomac river
to the lands formerly belonging to McQueen, and now said to belong
to Mr. Hughes, and to extend out from the river for quantity.'