
    Lessee of Frederick Merchant and the heirs and representatives of Peter Bright against John Millison.
    An improver of land, who takes out an office right and does not refer thereon to his improvement, must f rima facie be supposed to abandon his improvement. The presumption that a survey has been made with the party’s consent may be rebutted by circumstantial evidence.
    Practice of surveyors as to surveying above 10 per cent, surplus lands.
    Ejectment for 300 acres of land in Union township.
    The plaintiff claimed under a warrant to Frederick Merchant and Peter Bright for 250 acres of land on the waters of Big Sewickley, adjoining land of Jacob Millison dated 10th February 1786; upon which a survey was obtained on the 12th April following of 268 acres and 155 perches, and a patent issued thereon, on 27th October 1787.
    It'was admitted and proved, that near thirty years ago, Jacob Millison, the father of the defendant, purchased a tract of land from William Thompson, then surveyor of the district, who surveyed it. There was then no other claim to it, nor was there any dispute with any of the neighbours about the boundaries.— In March 1780, Millison had a house, a barn, and sixty acres of land cleared on it.
    It appeared in evidence, that on the 4th December 1784, Jacob Millison obtained a warrant for 300 acres including an improvement on the waters of Sewickley, adjoining John Perry and Joseph Irwin, interest to commence from 1st March 1780; and •on the same day, he obtained another warrant in the name of Philip Millison, his son, for 300 acres, including an improvement on the waters of Sewickley, adjoining lands of Hugh Alexander *and Jacob Millison, interest to commence from the 1st r* March 1782.
    On these warrants, Peter Light, the assistant of John Henderson, deputy surveyor, made a large survey of 900 acres on the 26th April 1785, but afterwards returned above 300 acres on each warrant. What passed at the time of surveying, or before the returns, between Light and Millison, did not appear in evidence, further than that Frederick Merchant (one of the lessors of the plaintiff, and who was examined as a witness at the defendant’s instance, and by his own consent) swore, that Henderson told him, he had been informed by Light that Milli-son had thrown out part of his lands, and advised him to take out a warrant for it.
    It appeared in evidence, that there was no marked line between the lands in question and those returned for Millison ; and that this supposed line runs about 50 perches from the house of the latter, excluding about acres of his improved meadow and good bottom land equal to any part of the farm, and including a quantity of poor, thin land, on the back part of the survey. Immediately after the plaintiff’s warrant was taken out, Milli-son built a cabin on the lands in controversy, and retained the possession of them. On the 23d October 1786, Jacob Millison, as administrator of his father Jacob Millison, obtained a warrant for 200 acres in trust for the heirs, adjoining Peter Thomas, Philip Millison and others, on the waters of Sewickley, and procured a survey of 220| acres and allowance by Benjamin Lodge, on the 12th September 1786, and a patent on the 12th October 1786, which included the lands in question.
    Three surveyors were examined, who declared, that where there was no dispute, they found little or no difficulty, when they returned more than 10 per cent, surplus, on surveys made by them since the revolution. In some instances 350 and 360 acres had been surveyed and returned on warrants for 200 acres; and in some others, double the quantity of the lands mentioned in the warrants, and they had been all accepted.
    In the course of the cause, it was objected that the improvement on the land in controversy should not be received in evidence for the defendant, his warrant of 1786 not referring to an improvement; and the case of Carrol’s lessee v. Andrews, lately at Washington, was cited and relied on.
   Sed per Cur.

The exception would have been well taken, and would hold in its full force, if Millison had abandoned his improvement, and agreed to the return of survey as made by Light. But the defence rests on the opposite ground, and that he never *could be supposed freely to have given his concurrence, to such returns, abridging himself of part of his [*75 improvement, and the best part of his land. Whether the assistant surveyor has been guilty of a legal fraud or not, is almost the only question to be decided.

This cause had been tried before president Addison, in March term 1793, when a verdict passed for the defendants. Addison 52. It was now fully spoken to on the merits, by Messrs. Sample and Collins for the plaintiff, and Messrs. Ross and Young for the defendant; (and Yeates, J. being so hoarse with a cold that his voice could not be heard) Smith, J. gave the charge of the court.

After stating particularly the written as well as oral testimony, he observed, that if the paper titles only were to be judged of, the plaintiff’s title must prevail, being the earliest. But other circumstances deserve consideration. Light in April 1785, surveyed all the lands, under the two warrants of Millison. The former survey by Thompson being made without authority, has no weight or effect whatever. The improvement of acres of meadow would give a preference, unless it was after-wards abandoned ; because, no man shall by his act defraud the state, and yet gain a' benefit by his improvement. The first legal presumption which arises is, that the return of the survey made by Light was the real survey executed by him on the ground, with his consent, and that he relinquished the small portion of improved meadow, and agreed that the lands in question should be thrown- out of the survey. But this presumption may be encountered by other proof, either direct or circumstantial. Two strong circumstances are adduced for this purpose. The first is, that no marked line appears on the ground, dividing the lands returned from those in controversy. The second is, that lands of a much inferior quality are taken into the survey, while U2- acre of good meadow and the best bottom land are left out, by a line which passes within 50 perches of his door. It has been truly said, that no man, unless in a state of derangement,‘would prefer bad to good land. We have no evidence of this having been done with the direction, consent or knowledge of Millison ; and here are two presumptions opposing the common and legal one arising from the return. A surveyor certainly has no right to garble lands at his will and pleasure, and return what parcel he thinks proper. In an instance like the present, he should have stated the contents of the first survey to his employer and taken his directions thereon. I, however, for my own part, do not go so far as the witnesses, with respect to surveying and returning surplus lands. I rather think the deputy *was not obliged to make a return of so *76] large a survey as 900 acres, under warrants for 600 acres, and that the land office was not bound by their usage to accept so large a return. The first instructions to the deputy surveyors not to survey more than a surplus of 10 per cent, on each hundred acres contained in a warrant, took place in 1766, and arose from a desire to accommodate the different appliers with lands, and the fees of the different officers were regulated thereby. But when it was discovered that the proprietary institution might be evaded by taking out warrants in the names of other persons, the rule of practice still continued, though the reason of it had long before ceased. However, before the revolution, whenever the deputy surveyor certified, that the surplus lands beyond the 10 per cent, were only desirable for the lands in the warrants, there was little hesitation as to the accepting of the return of survey of such surplus. I know of no rule on the subj ect. If the present contest rested merely on the point, whether 450 acres should not have been returned on each of Millison’s warrants, as a matter of right, I should incline against the defendant, but I give no decided opinion thereon. The practice of surveyors since the revolution would have much weight.

Referred to in i S. & R. 136.

Cited in 4 S. & R. 434 to support the proposition that no one should be permitted to allege a settlement at any time prior to the day mentioned in his warrant, for the commencement of interest, because such an allegation would be contrary to the averment in the warrant.

Cited in 7 Watts 236; 4 W. & S. 79; 12 Pa. 91; 40 Pa. 167.

Upon the whole, the question turns chiefly on this point, whether Millison knew and consented, that these 22of- acres should be thrown out of his survey. If this was the case, and he concurred therewith at the time, he and his heirs shall be bound by it, however injudicious the act was. On this head, we have stated, that the legal presumption is in favour of the present plaintiff, and have also shewn the circumstances repulsive of this presumption, which will have their proper weight in the minds of the jury. Certain it is, that Millison soon evinced a dissatisfaction with the conduct of the deputy surveyor’s assistant, by erecting a cabin on the disputed ground, directly after he had heard that the adverse warrant had issued from the office. And the meadow fence standing on the lands in controversy, was full notice to the lessors of the plaintiff to put them on the inquiry respecting the right of the soil. Under all the circumstances of the case, as disclosed on the present trial, we both are strongly inclined to think there should be a verdict for the defendant.

Verdict pro def.  