
    Creek and another against Moon and another.
    
      Monday, October 15.
    In Error.
    A survey made by a person, not appearing to have been a deputy surveyor, of land not comprehended within the Act of 8th April, 1785, returned into office and accepted*, ánd a patent issued’ thereon, is valid.
    ERROR to the Court of Common Pleas of Cumber- » » ' . t Ifflld County. *
    A survey in 1783, of 328 acres, on a warrant for 150 acres, to the prejudice of the improvement right of a third person, to 300 acres, which improvement was made prior to the survey, is bad.
    
      This was an ejectment for 200 acres of land in Cumberland county, brought by Gilbert Moon and Philip Leonard, defeti-. dants in error, and plaintiffs below, against John Creek and Catherine Creek, The plaintiffs below claimed under a warrant to John Ramsay, dated the 6th February, 1775, “ for 150 acres of land, adjoining his other land, and. land of Alexander Power, in Rye township, Cumberland county, interest to commence ist March, 1772.” On this warrant a survey of 328 acres and 112 perches, with the usual allowance, was.made by James Harris, on the 12th March, 1783, and returned on the 4th April, 1783. Ramsay conveyed to Jonathan Williams, on the 25th March, 1783, and a patent .to Williams was issued on the.-14th April, .1783. He conveyed to John Field and Mordecai .Lewis, in trust for his creditors, by deed dated the 7th April, 1787, and John Field, who survived Mordecai Lewis, agreed to sell and convey to Philip Leonard, by articles dated' the 11th October, 1811. Philip Leonard, executed a declaration of trust to Gilbert Moon, on the 18th December, 18 11'.. ' ; '
    The defendants made title, under a warrant to Patrick M’-Gary, dated the 18th November, 1803, “ for 300 acres of of land, including an improvement, adjoining, lands of John Ramsay, &c., interest to commence 1st March, 1771.” Parol evidence was given of an-improvement by John M‘Lane, about the year 1771, not on the land in dispute, but near it j and supposing the defendants to be entitled to 300 acres by virtue of that improvement, they might include the disputed lands in their survey. -The defendants endeavoured to connect their title with MiLane’s improvement, and gave evidence for that purpose. On the other hand, the plaintiffs also gave evidence to shew, that the land in dispute belonged to Ramsay, who had made an improvement on or near it in 1772 ; and, in order to destroy the title set up by the defendants under M-Lane, they gave evidence tending to prove, that M‘Lane made his improvement on 100 acres of land purchased by him of Ramsay, and that these-100 acres included no part of the land in-dispute, and MiLane never made any claim to them.
    The defendants’ counsel requested the Court to charge the jury on the following, among other points.
    
      1. That the granting a patent to Williams, was prima facie,, evidence, that the prerequisites to the obtaining of a patent had been complied with; but that it is only prima facie evidence, and the defendants may prove that the prerequisites have not been complied with. That if the survey made by James Harris was a private one, and not intended to be returned into the surveyor general’s office^ the patent to Williams, issued improvidently and erroneously, and vested no title in the plaintiffs, or those under whom they claimed.
    2. That oñ a warrant granted the 6.th February, 1775, for 150 acres, and a survey on the 12th March, 1783, on such warrant, when an adverse claim existed, 328 acres, and 112 perches and allowance, could not be surveyed, though done by a legal officer. .. ; .
    The Court charged on these points, as follows.
    1. The granting a patent to Williams was prima facie evideiice that the prerequisites to the obtaining a patent had been- complied with'; but it is only prima facie evidence, and the defendants may prove that the prerequisites had not been complied with. If the survey made by James■ Harris was. a private one, and not intended to be returned into the surveyor general’s office, this alone would be insufficient; but in connection with all the other circumstances, we think the patent vested a.sufficient title in Williams, and those claiming under him, o.n which to authorise the plaintiffs to recover.
    3. On a warrant granted on the 4th February, 1775, for 150. acres, a survey Of the 12th Márch-, 1783, for 328 acres, 112 perches and allowance, if returned, accepted, and a patent granted, is valid, .although an adverse claim have existed at the time predicated on, an adjacent improvement. No complaint having been made from 1783, it may be presumed such claim .is relinquished.
    The defendants excepted to the charge of the Court.
    
      Parker and Tod, for the plaintiffs in error, contended,
    !. That the land officers had no right to grant a patent upon a private survey.. The Act of 9th 'April, 1781, sect. 3, » declares, that “ the surveyor general shall have power to appoint a deputy or deputies in any county of this State, who shall have power to make and return into the land office, surveys only in the county for which such deputy or deputies shall be appointed, for the conduct of which deputy of dé.puties, the said sufveyor general shall be responsible.” This act does, substantially forbid a’ survey to be executed and returned by any but the surveyor of the district. It is bindingoñ the officers of the land office, and they had no right to depart from or dispense with it. They cited Bixler x. Baker, é Binn. 213. ‘
    2. Though by the practice of the land office, and the decisions of the Courts, the party may survey more than a surplus of ten per cent, on the quantity contained in a warrant issued since Í767, yet it is well settled, that he cannot do sb to the prejudice of a third person, who has an interfering claim. The law on this subject is fully stated in Kyle’s Les-, see v. White, 2 Sm.Laws, 164. Steinmetz v; Young, Ib. 166. Blair v. M'Fee, Pittsburg, 1820, 6 Serg. Rawle, 193.
    Metzgar, contra.
    1. The land office having accepted the survey, it is immaterial who made it; It is binding on the Commonwealth. In Harris’s Lessee v. Monk, 2 Serg. & Rawle, BS7, it is held, that the surveyor general may appoint a special agent to execute a survey, whether that agent were a deputy surveyor or not.
    2. The Court is to be understood as leaving it to the jury to judge, whether there had been an abandonment of the adverse claim or not. If there was, the case was the same^ as if there had never been an adverse claim, and, in that case, ' the survey would have been good, according to the principles decided. , •
   The opinion of the Court was delivered by

Tilghman C. J.

[After stating the points of the case.]— On these points offact, the parties were at issue before the jury, and in the course of the trial, several matters of law were submitted to the Court, and decided by them, to which the counsel for the defendants excepted. These exceptions may be reduced to two heads. .

1. The defendants contendedj that at the time the plaintiffs’ survey was made, fames Harris was not deputy surveyor of that, or of any other district, and consequently the survey was void, and could not be made good by the accep. tance of the surveyor general and the patent.

, They contended, that the quantity of 328 acres and 112 perches, could not lawfully be surveyed on a warrant for 150 acres,' nor could such a survey be confirmed, by acceptance, and patent, to the prejudice of a third person, who’claimed under an improvement made prior to the survey.

On both points the opinion of the Court Was against the defendants.

1. As to the first point. This survey does not fall within the provision of the 15 sect, óf the Act of 8th April, 1785, by Which it is declared, that every survey made by any deputy surveyor, out of his proper district, shall be void and of no effect; because it has been, settled, that that provision was confined to the lands contained within* the purchase lately made by the Commonwealth, of the Indians at Fort MCIntosh, of all the residue of waste lands within the charter bounds of Pennsylvania. This the counsel for the plaintiffs in error, have conceded., They have rested their case on the 3d sect, of the Act of 9th April, *1781,1 Sm. L. 529, by which it is enacted, “that the surveyor general shall have power to appoint a deputy or deputies, in any county of this State, who shall have power to make and return into the land office, surveys of land, only in the county for which such deputy or deputies shall be' appointed, for the conduct of, which deputy or deputies, the said surveyor general shall be responsii. Under the Proprietary Government, the surveyor general exercised the power of making special deputations, and I do not think he was deprived of this power, by .the Act of. 1781. There might be instances in which it would be very useful to employ a special agent, and it could hardly be productive of ahy ill consequences, as his return would be subject to the judgment of the Board of Property. Indeed the principle involved in the first point, was decided in the case of Wright’s Lessse v. Wells, 1 Sm. L. 301, where it was held, that a survey made on a warrant, dated 16th March, 1786, by John Hoge, deputy surveyor, of land lying out of his district, on which a patent issued the 7th September, 1786, was valid ; and in Shields’s Lessee v. Buchanan, and Funs ton’s Lessee v. M'Mahon, mentioned in 2 Sm. L. 256, and in the opinion of Judge Ye ates in Harris’s Lessee v. Monk, 2 Serg. & Rawle, 557, where surveys made by persons not the proper officers of the district, and recognised by the Board, of perty, were determined to be valid. In the present instance * * *• it does not appear by what authority James Harris acted, but the acceptance of his survey, and patent granted on it, afford strong presumption of lawful.authority. I ám of opinion therefore, that the survey was not-void. But I give' no opinion on a survey made since the Act of 1786, in a part of the Commonwealth to which that Act extends. .

On the second point. I do n'ot see how the opinion of the Court of Common Pleas, can be supported. The warrant was for 150 acres—the survey contained 328 acres, and a third person who had made an improvement prior, to the survey, was interested. If may be presumed, that when that third person was making his improvement, he knew that there, was vacant land adjoining, sufficient to give him 300 acres. He never could suppose, that his neighbour who had a warrant for 150 acres, would endeavour to include double that quantity in his survey, and if he were acquainted with the rules of the land office, he would know that such survey would not be permitted. Ever since the year 1767, the deputy surveyors have been forbidden to include more than ten per cent, surplus in their survey's. Yet they have often disregarded this prohibition, and where' no third person was injured, it has been very common for the officers of the land office, to accept the survey, and issue a patent. It had been better if the rule had been more strictly observed ; for many law suits have been the consequence of this .imprudent relaxation. But although titles have been confirmed. under these irregular surveys, where none , but the proprietaries or the Commonwealth were interested, it has never been supposed that there should be a confirmation of surplus beyond ten per cent., to the prejudice of one who had acquired an inception of title before the makirig of the survey, either by improvement ór any other legal method. That there should, not be such confirmation, was declared for law in the case of Kyle’s Lessee v. White, 2 Sm. L. 165. 1 Binn. 249, and Steinmetz’s Lessee v. Young, 2 Sm. L. 166. Indeed the law has been carried so far in favour of third persons, that it has been decided, that not even the ten per cent, surplus should be in-eluded, to their prejudice. This will, appear in the cases of Elliott’s Lessee v. Bonnet, and Gripe’s Lessee v. Baird, 2 Sm. L. 167. This is the general principle with respect to surPlus * but there may. be cases, where the conduct of the parties interested, either by agreement between themselves to designate their respective boundaries, or by long acquiescence, may make a difference. In the present instance, however, so far as we can judge from the evidence, there are no circumstances authorising a departure from the general rule. A,* ah events, if there had been special circumstances, the Court should have given in charge, under what circumstances the law'would have been in favour of the plaintiffs, leaving the facts to be decided by the jury. I am of opinion, that there was error in the decision of the Court, on the. second point submitted to them, and therefore the judgment should be reversed, and a venirefacias de nova awarded.

Judgment reversed, and a venire facias de novo awarded.

Duncan J. gave no opinion, having been counsel in the cause. '  