Prout v. Bard ( 1840 )

The opinion of the court was delivered by

Sergeant, J.

We think the language of the fifteenth section of the act of April 8, 1785, is too strong to be got over by any construction that would render its provisions merely directory, and make a survey by a deputy surveyor of one district within the precincts of another district voidable but not void. For the act of 17S5, in its whole intent and objects, looks to a new mode of granting, surveying and disposing of the lands acquired by the commonwealth in 1784, by the treaty of fort M’Intosh, commonly called the new purchase. In relation to the mode of surveying the twelfth section is explicit, that the number of districts to be formed, and the extent and boundaries of each, were to be ascertained and declared by the surveyor-general, to be approved of by the president or vice president in council, who might, at their discretion, alter the same. These districts were accordingly marked out and designated, and deputy surveyors appointed for each. By the fourth section, the warrants were to be entered in the deputy surveyor’s books, that all persons who might apply for lands might be duly informed thereof. And then the fifteenth section declares, that in making any survey by any deputy surveyor, he shall not go out of his proper-district to perform the same, and that every survey made by any deputy surveyor without his proper district, shall be void and of no effect. How then can it be held that the deputy surveyor, Hunter, who was appointed for the fourth district, could go out of that district to make a' survey of the whole or any part of a tract within the fifth district? No reason appears why he could not survey the whole warrant in his proper district, or that his going beyond the district line, at the instance, 'as we must take it, of the warrant holder, was not purely voluntary. And even if it were not so, yet the policy of the legislature is marked in such plain and explicit language, that to hold the contrary would, we think, be directly at variance with the law.

The present case differs in every material point from the case of M’Namara v. Shorb, 2 Watts 288, which has been relied on by the defendant below. There the land was within the old purchase, and it has been settled, that the fifteenth section of the act of April 8, 1785, related solely to the lands then lately purchased at Fort M’Intosh. Wright’s Lessee v. Wells, 2 Sm. Laws 201; 1 Yeates 286; Harris’s Lessee v. Monk, 2 Serg. & Rawle 560; Creek v. Moon, 7 Serg. & Rawle 334. The fifteenth section of the act of April 8, 1785, therefore did not apply to the case, but merely the third section of the act of April 9, 1781, which authorizes the surveyor-general to appoint a deputy or deputies in any county of the state, who should have power tó make and return into the land office, surveys of land only in the county for which such deputy or deputies should be appointed. But this act does not contain the provision in the act of April 8,17S5, making a survey in contravention of its principles null and void; and therefore the act of April 9, 1781, has been construed liberally and as directory merely; whereas the act of April 8, 1785, will not admit such an interpretation. Besides which, the case of M’Namara v. Short, arose on a survey made for a settler, who had acquired by actual settlement a right to a warrant for a tract of land which happened to embrace land lying partly in the county of Huntingdon and partly in the county of Centre, and it was considered that a settler under the laws relating to the rights of actiial settlers, had a right to embrace his whole quantity of 400 acres in one warrant, and that the hardship of having two warrants and two surveys was not imposed on him. But here the warrant holder could have his warrant laid on any vacant land that he preferred within the district where he had chosen to place his warrant in the hands of the deputy surveyor, and had no claim under the law or any equity whatever to procure a survey by such deputy over his-line; nor could it be possible that another warrant holder, proceeding to a survey in district No. 5, could obtain that notice which the law contemplated every subsequent applier should have, by resorting to the books of the deputy surveyor of the proper district.

Judgment reversed, and a venire facias de novo awarded.