
    Stever v. Gillis.
    [Saturday, October 15, 1803.]
    Patents — Survey—Sufficiency of. — G. in 1770, surveyed and took a patent for a tract of 160 acres of land, the lines of which were all surveyed, except two. which were the lines of A. H. under a former patent, and which formed a small angle, containing 26 acres. These two lines, in the survey and patent of G., were thus described: — “Thence along Andrew Henry’s line 188 poles, to the beginning.”
    This survey and patent are good; and entitled G. to a pre-emption in the 26 acres.
    John Stever entered a caveat against a patent for 184 acres of land, on Looning’s creek, in Botetourt county, surveyed for Gillis, the 16th of May, 1797.
    The jury find, that the caveator made an entry of 26 acres in September, 1794; and obtained a patent for it-in 1796: That, Gillis’s original survey of 160 acres, (whereon his patent issued,) was made the 16th May, 1770: That one of the lines was not run by the Surveyor; and that one of the angles is not laid down in the plat: That the 26 acres are within the bounds of Gillis’s said patent for 160 acres, dated June 20th, 1772, provided the expression in the patent will warrant Gillis in passing Henry’s line: That Gillis made an entry for 50 acres, June 14th, 1789, (which covers the said 26 acres claimed by Stever;) and, in pursuance of an order of Botetourt Court, rersurveyed his lands, including therein his old patent of 160 acres, and 26 acres, part of an entry for 50 acres; which 26 acres he claimed as surplus lands, within the bounds of his old patent. But they do not *find that Gillis entered for SO acres, June 14th, 1789, as above mentioned.
    The District Court gave judgment in favor of Gillis, and Stever appealed to this Court.
    Wickham, for the appellant.
    The last line in Gillis’s patent was a straight one; and, therefore, did not comprehend the land in controversy: for, the length of the two lines upon Henry’s tract is greater than a straight line; besides, the courses are different. A general reference to Henry’s lines was uncertain; and, therefore, objectionable, upon a supposition that a straight line was to be run : but it is clear that Gillis meant a straight tine at the time of his survey, because it answered his purpose better.
    Call, contra.
    Gillis’s patent was founded on an actual survey, except as to the last line, which is only referred to. But that was enough; because, it had been surveyed before, when Henry’s survey was made: So, that the course was completely ascertained, and might be known, by recurrence to the Surveyor’s books. It was, therefore, unnecessary to run it, as a general reference was sufficient. Supposing, then, that the reference had been to Henry’s lines, there could have been no difficulty; for, it would be evident, that both were comprehended: but, the omission of a single letter at the end of the word, will never be held sufficient to defeat the justice of the case. On the contrary, the Court will supply the omission; especially, as it is obvious that the word ought to have been lines, or the figure never could have been completed; because, one line only would not have proceeded along Henrj’-’s line, but would have led another course altogether: JSTor is there any reason to suppose that Gillis meant a straight line. Indeed, a contrary intention is obvious: for, it is clear, from the whole view of the figure, that he meant to comprehend all the vacant land in those parts up *to Henry’s lines, which he intended to make his boundaries: An intention, which there was nothing to impede; for, at that time, no previous warrant from government was necessary, as there is now; but the party made his entry and survey without; and, upon exhibiting them at the public office, claimed the patent, on payment of the composition. Of course, there is no reason to conclude, that he was obstructed in his views from the want of money, or a larger warrant; because he might have taken leisure to procure the necessary sums. The reference to Henry’s lines was not uncertain; for, they might have been ascertained by l'ecord: and that is certain, which may be rendered so. The only objection, therefore, seems to resolve itself into the length of the line; for, the two lines, united, are about 143 yards longer than the straight line. But that circumstance will make no difference; 1. Because the whole of those two lines was to be gone over; for, the patent says they are to go along Henry’s line to the beginning: So, that they must get to the beginning; and, therefore, the mistake is only a mistake of calculation, or of measure; neither of which ought to vitiate. 2. Because the locator was not privy to it, but depended on the public officer, whom the law obliged him to employ; and, therefore, it would be unreasonable, if he was to be affected by the officer’s acts, as he had no choice. 3. Because the act of Assembly declares such acts shall not prejudice; for, it expressly saves the right of pre-emption, where a mistake has been committed, either through the ignorance, mistake, or fraud of the Surveyor. R. C. 1S6, l 46. But, one of these it must have been; and which ever it was, the act provides for it. Under this act, the plaintiff ought to have given notice to the defendant of the surplus, and should have obtained a warrant to survey, from the Register; which he was bound to have waited a year for, in order to have given the defendant an opportunity of asserting his rights • of pre-emption; but nothing of all this appears. On the contrary, *the plaintiff has hurried on, without the least regard to the law. Nor is this all; for, by the act, the defendant had a right to have assigned the surplus in any part of the tract: whereas, the plaintiff arbitrarily claims a particular spot. Again, the defendant had a right to re-survey; and, for that purpose, obtained an order from the County Court, which he carried into effect, and returned the plat to the Register’s office,' but was improperly arrested in his progress to a patent. In this respect, too, the provisions of the law were violated by the plaintiff; and, therefore, upon that ground, also, the law is for the defendant.
    Wickham, in reply.
    The question arises on the last line, which ought to have been a straight, and not a crooked line. It was not run; and that proves that a straight line was meant at the time: for, the usual course is to omit to run the last line, which can be done as well by platting, as by actual survey. So, that the inference is inevitable, that a straight line only was intended: A straight line leads, as necessarily, to the beginning, as the course along the other two: So, that there is no objection upon the supposed ground that the figure would not have been closed, according to that idea. There was no mistake of the Surveyor, in the manner contended for on the other side: but, the presumption is, that the survey was made in pursuance of the directions of Gillis, who acquiesced therein; and, therefore, adopted the act. Gillis could not take more than his patent lines covered : the rest was necessarily vacant land, and not affected by the patent. The act of Assembly, cited for the appellant, makes no difference; because, this land was not comprehended within the boundaries of Gillis’s patent; and, therefore, the doctrine concerning pre-emption does not apply. The Surveyor did not, necessarily, know the courses of Henry’s lines; and, therefore, he could not mean to rely on them. He thought Henry’s line a straight one; and, therefore, did not run it, but protracted *the straight lineas Henry’s; which answers the objection that the patent calls for Henry’s line.
    Cur. adv. vult.
   LYONS, Judge,

delivered the resolution of the Court. That there was no error in the judgment of the District Court, and, therefore, that it was to be affirmed: He added, that speaking for himself only, he saw no foundation for the appeal. That a single letter at the end of a word was omitted in the survey and patent, which ought not to affect the case; because it could make no difference, in substance, whether line or lines was used; for, still the same course was intended, and necessarily to be pursued, in order to complete the figure. Consequently, that he concurred with the rest of the Court, that the judgment ought to be affirmed.

Judgment affirmed.  