
    *AT A CIRCUIT COURT, AT EASTON,
    JUNE, 1800.
    CORAM, SHIPPEN, CHIEF JUSTICE, AND YEATES.
    Lessee of William Bell against Robert Levers.
    S. C. 4 Dall. 210.
    Letter of a deputy surveyor to his assistant to make a survey, is good prima facie evidence, though not proved to have been delivered, and the survey has been made after the death of the deputy; but it may be repelled by other proof.
    The authority of an assistant surveyor should not be too nicely scrutinized after a great lapse of time.
    A survey of other lands on a lost location is of no more efficacy than a pocketed application, until it be returned.
    The limitation act of 26th March 1785, will not bar a recovery on a descriptive warrant without a survey, where proper application has been made for a survey, and the party has been prevented therefrom by a caveat.
    A decision of the Board of Property may be fully questioned at law. Cited in 3 Watts 16 in support of the decision that in an ejectment for land west of the Allegheny river, where a period of thirty years has elapsed the agency of an assistant to the deputy surveyor of the district may be inferred from circumstances proved.
    
      Ejectment for seven tracts of land on Leekawaxen creek, in Upper Smithfield township, containing 2100 acres.
    The plaintiff founded his pretensions on an application made by John Seely, date September 6th 1766, for 300 acres of land on Lackawack, adjoining Jonas Seely, and a survey thereon said to have been made by the said “John Seely, on the 21st July “ 1772, of 297 acres 28 perches, and returned by him by order “of James Scull, D. S.” — Also, on the following four warrants, dated 29th November 1774; one to Robert Towers, for 300 acres, adjoining John Seely to the north of his tract, about three miles above the falls, on the main branch, and about eight miles above the Indian Orchard, in Northampton county; one to Benjamin Horner, for 300 acres, adjoining Robert Towers, on the main branch of Leekawaxen creek; one to John Minshall, for 300 acres, adjoining Benjamin Horner, on Leekawaxen; and one other to John Morrison, for 300 acres, adjoining John Seely to the south of his land,’ down Leekawaxen, on the main branch.— Likewise on two warrants, one dated February 23d 1775, to William Roberts, for 300 acres/adjoining John Morrison to the south, on the branches of Leekawaxen; and one to Amos Taylor, for 300 acres, on the Leekawaxen, adjoining William Roberts, on the south side of his tract.
    Seely conveyed his application and survey to Towers in consideration of 30I., on the 19th May 1775, which together with the warrants by sundry mesne conveyances, for valuable considerations, became vested in William Bell.
    On the 1st December 1774, Robert Towers paid 102I. into the surveyor general’s office, on the first four warrants ; and on the 18th August 1775, William Roberts paid 45I. 15s. into the same office, on the two last warrants.
    The defendant claimed under six applications, whereof two were dated 5th August 1765, one in the name of John Williamson, for 300 acres, at a place called Elamus Seat, upon the main branch of a creek running out of the Great Swamp over the Blue Hills ; the other in the name of Joseph Dean, for 200 acres, about a mile below Elamus Seat; and four others, dated 14th August 1765, each for 300 acres, adjoining each other, at or near Elamus Seat.
    *24]*It appeared that the lands in controversy were about seven miles distant from Elamus Seat, (commonly called the Indian Orchard,) referred to in the defendant’s locations, and about four miles distant from the plaintiff’s leading application in the name of John Seely, but the warrants were sufficiently descriptive of the disputed grounds. John Seely and Robert Levers originally intended to have taken up the Indian Orchard and adjacent lands, but an early warrant, dated 30th July 1765, for 10,000 acres, having been granted to Jonas Seely, the same were surveyed to him and returned.
    This John Seely acted as an assistant to James Scull, th6 deputy surveyor of "the district, who wrote a letter to the former, dated 1st October 1772, directing him to survey such lands for the said Robert Levers, (who paid for a discovery of the lands in the applications,) as he should direct, and in the manner in which he chose to have them laid out.
    Seely afterwards, at the expence of Levers, and under- the direction of a person whom he had employed, on the 22d May 1773, shifted the orders of survey and executed the same on the lands in dispute, by running the outlines thereof, but made no return thereof into the surveyor general’s office, nor was he applied to for that purpose.
    It did not appear, when the survey said to have been made on the application of John Seely, was returned into the office of the surveyor general; but it was ascertained by a variety of concurring circumstances, that it could not have been made on the 21 st July 1772, but was taken fraudulently by him from the survey he had made for Levers in May following.
    Very early in 1775, Robert Towers, who then owned the first four warrants, applied to the deputy surveyor of the district to execute the same, but he could not effect it, though he wrote to the said John Seely for that purpose.
    On the 30th March 1775, Robert Levers entered a caveat against any surveys being made on the warrants of Towers on the waters of Leekawaxen, alleging that the lands had been surveyed at his expence by John Seely on prior rights. A hearing thereon was afterwards directed to be had on the 7th August 1786, which by two postponements came on upon the 2d June 1794, when the Board of Property decided in favour of Levers, on the ground of his having the first surveys under prior rights, and ordered that the deputy surveyor should resurvey the lands for him on his applications, and make return for his use.
    James Scull aforesaid, the deputy surveyor, died at Reading, on the 31st December 1772, and was succeeded by Jasper *Scull, who died the latter end of May 1773, but it did p not appear that John Seely ever acted as an assistant to L ^ him. George Palmer was his successor.
    The plaintiff’s counsel objected to the reading of the aforesaid letter of James Scull in evidence. No proof has been given of its delivery by any one to Seely, or that the surveys were made in consequence thereof. The authority under it expired on the death of James Scull, and Seely made no surveys for Jasper Scull, his successor in office.
   Sed per cur.

The letter is good ptima facie evidence and may be read. Its legal operation, however, may be fairly questioned, and it may be repelled by other proof.

After a full argument by Messrs. W. Tilghman, Biddle and Condy, for the defendant, and by Messrs. Ingersoll and Hopkin-son for the plaintiff, the Chief Justice observed in substance to the jury, that the authority of John Seely to make the surveys on the defendant’s applications, should not be too nicely scrutinized after so great a lapse of time as 27 years. He publickly acted as the assistant of James Scull, and might not have known of his death in May 1773, in which case his acts would be validated ; or transacting business under a reputed authority, it might be presumed that he was the agent of Jasper Scull, though it does not now appear.

The fatal exception to the defendant’s title consists in his not obtaining a return of his surveys into the surveyor general’s office, which were executed on grounds different from those called for in his applications. The due diligence of persons who take up lands in this mode, forms an essential feature in constituting their rights. Hence, where negligence occurs, a subsequent order of survey, industriously followed up, may defeat the operation of a former one, which in the due course of business, might be supposed to describe the lands with convenient precision and certainty. It lies in the power of no individuals to lock up the land office against the settlement of the country, or other applicants, by their wilful neglect and delay.

It has long been the settled usage and practice, both before and since the revolution, for deputy surveyors and their assistants to remove lost locations to other lands, where there were no existing prior opposing rights. No injury was done thereby, either to the lords of the soil, or to individuals. The pretensions of the party were thereby ascertained, and the contract was complete on his part, but subject to be annulled on the return of survey. But it has always been deemed essential in *cases of this nature, that the returns of such shifted *26] surveys should be made in a reasonable time, in order to prevent others from bestowing their labour and money, in a fruitless pursuit of the same land. Without such constructive or actual notice, what footsteps remain in the proper offices to guide the enquiries of subsequent applicants ? The terms of the prior applications afford no light whatever. Here it is obvious, that Levers by his default, has led Towers into the mistake of paying 102l. on the 1st December 1774, on his warrants, and Roberts of paying 45l. 15s. on the 18th August following. As to the latter, the caveat of 30th March 1775, did not respect him. Levers therefore ought not to be permitted to effect an injury to his adversary by his own laches; his own title shall be affected thereby. A mere survey on a lost location, removed from the lands for which it was originally designed, has no more efficacy and consideration than a pocketed application, which it is universally admitted can give no title. Such have been the uniform decisions of the courts of justice, founded on the fair principles of plain sense and common honesty, and highly conducive to the security of landed titles. The establishment of the rule tends to certainty, and the prevention of lawsuits, and we are bound to follow it. Pursuant thereto, the plaintiff is entitled to recover the lands described with sufficient accuracy in his six warrants.

The limitation act of the 26th March 1785, cannot bar the plaintiff's recovery; (2 Dall. St. Laws 282, § 5) because, though he has no surveys under his warrants, yet Towers applied early in 1775, to the proper officer to execute them, and by a caveat entered by the defendant shortly afterwards on the 30th March following, he was prevented from having such surveys made, until the Board of Property decided on his title. Immediately after such decision the present suit was instituted.

Neither can the sentiments of the Board of Property, under the act of 5th April 1782, change the nature of the title. Ib. 22, § 3. The same may be questioned at law “in as full and ample “manner as if no determination had ever been given.”

As to the survey said to have been made by John Seely for his own use in 1772, there is abundant ground to believe that it was not then made, and that it was improperly foisted into the office. He knew that he had made the survey for Levers, and at his éxpence; and as he could gain no title by his villainy and breach of trust, so neither could he communicate any to Towers, by his conveyance of the 19th May 1775, and therefore as to this tract the plaintiff ought not to recover.

The jury found a verdict conformable to the charge of the court.  