
    *Field v. Culbreath.
    [April Term, 1801.]
    Land Grants — Caveats — Case at Bar. — In 1788 C. located a land office treasury warrant, issued 29th Nov. 1783, on lands on the Eastern waters; F. (who upon the trial, did not prove any title, in himself, to the lands located) entered a caveat, in the land office, against a patent to C. The District Court gave judgment in favor of C. and this Court affirmed it.
    Same — Entry.—What is a good Entry.
    Field filed a caveat in the Land Office against any patent issuing to Culbreath. Which caveat is in these words: “Let no patent issue to Thomas Culbreath, for thirty eight, and a quarter acres of land, surveyed for him the thirtieth day of October one thousand seven hundred and eighty eight, by John Holloway, assistant to Samuel Dedman surveyor of Mecklenburg county, and bounded according to the said survey as follows: Beginning at a white oak on Graffy creek, from thence, North thirty nine degrees East sixty six poles to> corner pointers in John Clark’s line, from thence, South eight degrees East one hundred and eighty four poles to Williams’s corner post oak in Thomas Field’s line, from thence, North eighty three degrees West fifty six poles to a maple on Graffy creek, thence down the same, as it meanders, to the beginning : And now caveated, and claimed by Thomas Field, of the said county of Mecklenbu'rg, for the following reasons:
    “First, because all the land contained in the said survey and plot is the proper estate of the said Thomas Fielding fee simple, and is included within his ancient and known lines, duly processioned, and in quiet and peaceable possession of the said Thomas Field, and those whose estate he hath and claimeth under the devise of his late father Theophilus Field deceased, in his last wilt and testament, for the space of fifty years last past, appropriated and occupied, with a visible personal property thereon of sufficient value to pay and discharge all the quitrents and land taxes, wherewith the same was ever chargeable.
    “^Secondly, because all quitrents. and land taxes, ever due upon the said land, have been duly and regularly paid by the said Thomas Field, and his predecessors in the freehold ; agreeable to the quantity expressed, in the old surveys and grants.
    “Thirdly, because the said Thomas Field, was in actual possession of the said land, at the time of the said survey:
    “And fourthly, because the said survey and plott, and the record and return thereof are irregular, improper and contrary to law. ’ ’
    At Mecklenburg County Court November 1790 a jury were , impanneled to find such facts as are material to the cause, and not agreed by the parties. The record then states, that “It appearing to the Court, that the warrant, under which the defendant claims, issued previous to an act of Assembly passed in the year one thousand seven hundred and eighty five, directing the manner of obtaining rights to unappropriated lands, on the eastern waters, and the survey aforesaid made in consequence of an entry by the said warrant, and that the said defendant has no right to a grant by virtue of the said survey under the said warrant,: Therefore it is considered that a grant issue to the plaintiff for the said lands, upon his complying with the lqws in such cases made, and that he recover against the defendant his costs.”
    The defendant filed a bill of exceptions to the foregoing opinion of the Court; which stated, that the defendant offered in evidence to the jury a Land-Office Treasury Warrant, dated the 29th of November 1783, issued to Daniel Carter for 300 acres due him, in consideration of. A480. current money paid into the public Treasury. And assigned by Carter to Harper; and by him to Samuel Dedman: Who assigned two hundred acres thereof to Mitchell; and likewise indorsed that *he had surveyed 38j£ acres of the warrant for Culbreath. That the defendant also offered in evidence an entry in the following'words: “April 8th 1788 Thomas Cul-breath enters, by Land-Office Treasury Warrant No. 20,900, granted Daniel Carter, and dated the 29th day of November 1783, for all the vacant land, between the lines of John Clark, Thomas Field, James Williams, and William Culbreath ’deceased.” That he also offered in evidence a survey, which begins at a corner White Oak on Graffy creek, thence to corner pointers in John Clarks line, thence to Williams’s corner post Oak in T Fields line, Thence to a Maple on Graffy creek, thence down the same, as it meanders, to the beginning. That the plaintiff prayed judgment of the Court, because the defendant had located the said warrant on lands lying in Meck-lenburg county, and not on the western waters, on which, alone the plaintiff insisted the defendant had a right to locate the said warrant, since the said act of 1785; and that the Court was of that opinion. The defendant prayed an appeal, which was refused by the Court.
    The District Court granted a writ of su-persedeas to the judgment; which they reversed (because there were no facts found by the jury, nor were the jury discharged) and retained the cause for further proceedings. At a future court, it was sent to the rules, for an issue to be made up. Which order, at another court, was set aside, on the plaintiffs motion, and the cause put upon the issue docket.
    In May 1797 a jury were charged, to find such facts as are material to'the cause, not agreed by the parties: Who found a verdict in these words:
    “We of the jury find the land warrant in these words, to wit: (setting it forth) We also find the following assignments on the back of the said warrant (setting them forth as above.) We also find, that the said Thomas Culbreath came *possessed of the said land warrant, in a short time after the said last assignment above written on the back of the warrant aforesaid. We likewise find the testament and last will of Theophilus Field deceased, in these words, referring to it generally, but particularly stating the following clause. ‘Item, I give and devise to my son Thomas Field and to his heirs forever the several tracts and quantities of lands, to wit:' All my lands and plantations on Graffy’ creek,' on the South side of Roanoak river, containing 2898 acres; of which 404 I formerly took up, 2300 I bought of John Hood, 36 of John Bressie, and 158 acres thereof I lately took up; also the land and plantation on the North side of Roanoak river, I bought of Thomas and John Satter White, (containing 400 acres,)’ That a woman had built a log house on the said 3834 acres of land, surveyed, as aforesaid, for the said Thomas Culbreath, and dwelt on the said 3834 acres of land, for eighteen years, or thereabouts. We further find, that Lemuel Wilson attended the processioning of the lines of the said Thomas Field and others twenty odd years ago, when the said Thomas Field informed him the said Williams, that the creek was the line, tho’ he knew there was an old line across a place called the Mountain, and further, that James Williams attended the processioning of the lands of the said Thomas Field and others, three or four times, at which times the said line across the mountain aforesaid was marked as the line of the said Thomas Field, and that the said 3834 acres of land was considered as vacant and unappropriated land; but was informed, by the said Thomas Field, that he had an order of counsel for the same. And we further state, that the said 3834 acres of land was vacant, and unappropriated land, and not included in the ancient boundaries of the said Thomas Field, at the time the entry was made by the said Thomas Culbreath.”
    *Upon this verdict, the District Court gave judgment for the defendant; and Field appealed to this Court.
    Call for the appellant.
    By the act of 1785 chap. 42 a different land warrant was necessary. For the Legislature, by that act clearly intended, that no lands upon the Easterp waters should be granted, after the passage of that law, upon any other terms, than those mentioned in it. Because by prescribing a particular mode, they thereby necessarily excluded every, other; and because too, by the last clause they, in express words except two cases from the operation of the statute. 1. Cases where a location had been already begun prior to the passing of the act? 2. Cases of preemption rights to marshes and sunken grounds. Which obviously excludes the' right of commencing an entry, under any former warrant. For by declaring the warrant good, where the entry was begun, or it was a case of preemption rights, they manifest their intention, that it should not be so, where the entry was not begun, or it was not a case of preemption rights. Again the object of the law was to provide a fund to aid the discharge of the public debt due to foreigners, which objéct would be utterly defeated, upon any other construction of the act. Because then the old warrants would all have been bought for locations upon the Eastern waters, at a less price, than the public would sell new ones for; but greater, than the price of warrants for lands, on the Western waters. So that the individual holders would be enriched, but the public purse would remain as empty as before the passage of the law. Which would have wholly disappointed the views of the Legislature. For the Eastern lands would still have continued to be located on the ancient terms, and new warrants would only have been taken out, for those on the Western waters.
    It cannot be said, that the construction now contended for, would give the act an ex post facto operation, which would be prejudicial to the holders *of the old warrants, whose former rights would be thereby divested or circumscribed. Because they may still lay them on the western waters, and thus have full satisfaction for the claim. So that the public faith is not violated towards them. Besides the warrant itself did not give them a right to any lands in particular, until they had made locations. It was only a right to locate them on unappropriated land ; which they might never exercise; and therefore could acquire no right to any land, either on the Eastern or Western waters, until a location was made. Which is the first inception of a right to lands in any particular part of the state. Walcott v. Swan in this Court. Therefore the warrant only gives a privilege of locating them on any waste and unappropriated lands, at the time of the proposed entry. For the very term unappropriated means not applied to, or set aside for, any particular use or purpose. But if a particular parcel is declared ungrantable, or specifically appropriated, before the holder has exercised the privileges, he can no more complain, than if an individual had made a location before him. The only difference is, that it is an .individual who appropriates, instead of the public; but the public has as much right to do so, as the individual. Now, in the present case, the public have appropriated the lands, on the Eastern waters, to a particular purpose, prior to the exercise of the right under the old warrant; which only gave the holder a right to locate it on unappropriated lands: A term not applicable to the lands in question, at the time of the location. But as the warrant only gave them a right to locate it on unappropriated land, that necessarily supposed a right in government to appropriate; and the Legislature have done so, with regard to the lands on the Eastern waters, by creating them into an auxiliary fund for the payment of the foreign debt. A contrary construction would defeat *the act of May 1780, which declares that commons &c. upon the Eastern waters, should not be grantable in future; although the act admits they were so, before the passage thereof. Which is only justifiable, on the ground of argument now assumed; namely, that they were previously appropriated before any attempt to locate. In fine, no location having been made before the act, no injustice is done the holder; who may still have satisfaction for his warrant on the Western waters, and the meaning of all the laws be preserved. Whilst the contrary construction would wholly defeat them.
    But if the warrant were good, the entry is too vague and uncertain. For it has no beginning, as it ought to have: Nor does it ascertain the lands with convenient precision, according to the case of Hunter v. Hall in this court. For it does not.appear, that the lines, described in the entry, do include the lands in question, upon all sides; and, in point of fact, when the survey came to be made, not more than two of the lines, described in the entry, corresponded with those mentioned in the survey. So that the entry may have comprehended a- great extent of country, and much beyond the quantity contained in the warrant; which was his only authority to locate at all. For a location without a warrant in possession is actually void.
    Wickham for the appellee.
    The question is, whether the caveat shall be sustained? Which can only be, where the party who caveats has a better right himself, than the person applying for the patent; for as to the point, whether the warrant is sufficient to entitle the holder to locate on the eastern waters, that is a matter purely for the consideration of the Register; who will refuse the patent if wrong, and grant it, if right. In the present *case, Field shews no title; and therefore he has no right to prevent a patent, from issuing to another. No injury results from this doctrine; because the Commonwealth will not be bound by the dismission of the caveat. The act of 1785 does not take away the right, to locate prior warrants, on the eastern waters. It does not do it in express words; and the tenor of the law is prospective. That Legislature did not mean to take away a vested right, from the holder. The case of commons &c. stands upon the same grounds as public roads, mill-dams, and other public conveniences. The land warrant was a contract, allowing the holder to locate on any unappropriated lands; and therefore any extraordinary attempt, by the Legislature, to diminish the objects of location, would have been a breach of the public faith. The entry was sufficiently certain. For it is for all the vacant lands lying within certain boundaries: Which superse-deas the necessity of a beginning; for that is only requisite, where there are surrounding, unappropriated lands. A caveat is like a declaration; it states facts, and the grounds of objection. But here, if it were even true, that a person having no title himself might caveat another’s patent, the appellant has not stated, that the warrant could not be located on the eastern waters, or that the entry was defective.
    Call in reply.
    Any person, whether interested or not, may prevent a patent from issuing to a person not having title to one, in order to prevent imposition on the public; and, if nothing of this kind be done in the Register’s Office, the court, as guardians of the public rights, would ex officio interpose, where it plainly appeared, that the party was endeavouring to procure a patent, contrary to law. For although such a patent would be void against a future locator, yet no person would willingly involve himself in a lawsuit with another, who was in possession, under a patent issued by the proper authority. The question is *not, whether the Legislature could prevent the holders of old warrants, from locating them on the eastern waters, but whether they have not specifically appropriated those lands? For if so, no injury is done the holders, who may still locate them on any unappropriated lands. The entry is altogether uncertain. A beginning was clearly necessary, according to the appellees own argument. For it does not appear, that there was no surrounding unappropriated lands, but the contrary; inasmuch as the lines, described in the entry, do not agree with those in the survey. So that it does not appear, that the entry comprizes no more land than is contained in the survey.
    
      
      Land Grants — Caveat.—See principal case cited in Carter v. Ramey, 15 Gratt. 347, and foot-note-, Staples v. Webster, 5 Call 274: Miller v. Page, 6 Call 36, 37, 40, 43.
    
    
      
      Ante, 298.
    
    
      
      1 Call’s Rep. 206.
    
   Per Cur.

Affirm the judgment of the District Court.  