Blount v. Ramsey ( 1814 )

Overton, J.¹

Ramsey’s entry being the oldest, the only question is wbether it has been surveyed agreeably to law.

On the part of the plaintiff it is insisted that Ramsey’s survey should have adjoined one of the eastern knobs, and then it would not interfere with the plaintiff’s survey.

Surveyors are officers of the government, sworn to do their duty. In making surveys they are directed by law to conform to the entries; in doing this they act independently of the claimants, and according to their best judgment. The law presumes every officer does his duty. Hardin’s Rep. 362; 11 East’s Rep. 297 ; .3 Bin. Rep. 28, 35; 3 Mass Rep. 379. Under such circumstances every reasonable intendment ought to be made in support of their acts, so that those whose rights they are effectuating may not be injured. 3 Bin. Rep. 30, 32; 3 Call, 419; Tayl. 116, 135, 303; 1 Johns. 495; 2 Wash. 115; Hardin’s Rep. 341; Maryl. Rep. 139; 2 Bay’s Rep. 539. Still, if it appears that a surveyor in making his survey has obviously departed from the calls of an entry, or surveyed contrary to law, his acts are voidable by those injured to the extent of such departure.

It appears there were several knobs in the neighborhood of this entry, and there is nothing in it to confine it to one of those to the east more than the one to the west. There is a knob to the west which it adjoins. The entry does not call for the largest knob in the neighborhood. Whether the one it adjoins to the west may be called a large knob, does not appear either from the finding of the jury or the facts agreed. The expression used is indefinite in its nature, and cannot, in relation to the size of a knob, control the more definite, notorious call of the one mile tree. The defendant has the first entry, and he is entitled to the first survey and the first grant. The surveyor considered this the knob called for in the entry, nor is there anything in the evidence showing his opinion to be incorrect. How then can the Court say the survey is wrong, and that it ought to adjoin one of the knobs on the east ? Consistently with legal principles the Court cannot say so. The survey includes the one mile tree as called for, and runs west and south as contemplated by the entry. This is agreeably to law, and therefore there must be a judgment for Ramsey.

1 Original Note. — Absent White, J.