
    Crisp vs. Kimble.
    Under the act of 1829, ch. 22, see. 7, an entry, on an occupant claim not laid down on the general plan of the district, without the consent of the occupant in writing, if said occupant’s improvement is included in the entry, is void, not only so far as it includes the occupant’s improvement, but so far as it interferes with the occupant claim; and a mandamus will lie to compel the surveyor general to enter such occupancy an the general plan of the district in which the land is situate.
    By virtue of the act of 1832, Kimble, as an occupant, was entitled to a preference of entry of his occupant claim. On the 2Sth of June, 1833, he tendered to the surveyor general proof of occupancy, a survey, warrant, and location, which the surveyor refused to receive, because he had previously received a location and warrant, and had entered the land for the benefit of Tobias Gibson and Josiah Baugh, on the 2d day of February, 1S33, which entry he would not vacate.
    A mandamus nisi having been granted, and the parties appearing, upon these facts a peremptory mandamus was awarded. From this judgment the surveyor prosecutes this appeal in error.
    A. Miller, for the plaintiff in error.
    The counsel for the plaintiff in error insists that the court erred in order-mg the mandamus, because by the petition it appears that the defendant in error had not his land surveyed and spread on the general plan at the time the entry of Baugh and Gibson was made. See act of 1826, ch. 7, sec. 1 and 2, vol. 2, p. 107.
    2. It does not appear that the improvement of the petitioner would cover thirty-nine and a half acres of land, or that his location only included the part of Gibson and Baugh’s entry that covered his improvement. 1829, ch. 22, sec. 7.
    3. The act of 1829, ch. 22, sec. 7, only makes the entry void so far as it embraces the occupant’s improvements, and does not avoid it as to other parts of the land.
    
      D. Fentress, for the defendant in error.
    The act of 1829, ch. 22, sec. 7, is revived by the act of 1832, ch. 29, sec. 6, and the time allowed to occupants extended. That act makes void an entry upon the occupant claim, ■without leave in writing obtained from the occupant.
   Green, J.

delivered the opinion of the court.

By the act of 1829, ch, 22, sec. 7, it is provided, that if any entry shall he made on any occupant claim not laid down upon the general plan of the district, without the consent of the said occupant in writing, if such entry includes the occupant’s improvement therein, it shall he null and void, so far as it interferes with said occupant claim.

It is insisted by the plaintiff in error, that this law makes the entry, which may have been made on an occupant claim void, only so far as it includes the improvement of the occupant. That could not have been the meaning of the legislature. The occupant, as in this case, may have no improvement, save his house and shop. If the argument for the plaintiff in error be correct, then the entry would be valid for all the land around the buildings and so render the buildings themselves of no use. But the act says such entry shall be void so far as it interferes with the occupant claim. This extends to the whole land which by Jaw the occupant may enter. The judgment will therefore be affirmed.

Judgment affirmed.  