Steyer v. Hoye ( 1841 )

Spence, J.,

delivered the opinion of this court.

The material allegation in this bill, namely, that the appellees in this cause obtained their patents by combination and fraud, is unsupported by the proof in the record.

After a careful examination of the progress and history of this cause, we are driven to the conclusion, that all of the grievances and injuries of which the appellant complains, are the unavoidable consequences of his own omissions and neglect. It is not to be questioned that the seniority of his warrant of resurvey gave him a prior right to acquire a title to all the vacancy contiguous to his tract of land called The Plains ofMoab. But while the law awards preferences and advantages to the favored on the one hand, it exacts care and diligence from them on the other, to the end that full justice may be meted out to all.

The appellant in this case had an interest in virtue of the seniority in his warrant, which, with proper diligence and care, would have placed him beyond the reach of successful controversy, much less defeat; but he slept. The sluggishness of his course is not the only act of self-reproach which the appellant has to endure in this case. His errors and omissions thwart him at every step. To sum up, he made a location of his warrant of resurvey of the tract of land called The Plains ofMoab, and added 121 J- acres of vacancy, had a certificate of the same recorded by the surveyor, for which he paid the surveyor his fees, and then the appellant closed his survey, distinguished in the record as the certificate of the 1th June, 1836.

James Smith, one of the appellees in this case, obtair d a common warrant, caused a survey to be made, and a c .rtificate returned to the land office, paid the' composition on the same, and after the certificate had lain in the land office the length of time required by its rules and regulations, (vide act of 1782, chap. 38,) obtained a patent for the tract of land mentioned in these proceedings, by the name of The Birmingham, Mines.

This tract of land destroyed the continuity between the tract of land first resurveyed for Steyer, called The Plains of Moah, and the tract subsequently resurveyed for Hoye and Pettit, called Coal and Iron Certain. This survey of Smith’s, one of the appellees, presents the chief difficulty to the success of the appellant, and unless it be removed, must be conclusive against his right to the land in controversy in this cause, as it is a well established rule, that the vacant land included in a resurvey must be contiguous to the original tract or tracts.

This brings ns to the consideration of the integrity of Smith’s title to the tract of land called The Birmingham Mines. And, first, we are conslained to say, that we do not find any proof in the record, that he procured his grant by fraud or combination, but that he obtained his warrant, caused his survey to he made, the certificate returned, and patent granted in the ordinary and usual mode.

It was urged in the argument with great ingenuity and force, that Steyer’s warrant of resurvey being/irsi in point of date, gave him an interest in the land in dispute, paramount to all others of subsequent date, and this is not denied ; but suppose after his warrant issued, he had not caused a resurvey to be made, and certificate to be returned to the land office, within the time required by law, his interest would have been lost by his own supineness and neglect. So likewise, if after Smith had returned his certificate for the tract of land called Birmingham Mines, Steyer had not neglected for sis months, (the time prescribed by the act of 1782, chap. 38, for certificates to lie before patent issues, and for the purpose of a caveat,) to enter his caveat to Smith’s certificate, the judge of the land office would unquestionably have rejected Smith’s certificate, and thereby his equitable interest would have remained unimpaired.

If it be insisted that Smith was concluded from making his survey, by Steyer’s oustanding warrant of resurvey, the answer is found in the proof, that his warrant was executed, and certificate recorded by the surveyor, and that from the plot, (called in the proceedings Steyer's rough plot,) he, Steyer, not only had not, but could not locate in his resurvey the land included in Smith's survey, by reason of the interlocking of the lines o.f older tracts, which destroyed the continuity of the vacancy.

The knowledge conveyed by this plot, is the only evidence in the record that Smith knew of Steyer's warrant, and from-this he could draw no other conclusion, than that the land included in his survey called The Birmingham Mines, was untouched by Steyer's resurvey, theretofore executed, called The Plains of Moab. The decree is affirmed.

DECREE AFFIRMED.