
    [Lancaster,
    May 26,1823]
    LIGHT against WOODSIDE.
    IN ERROR.
    Though the rule in general is, that a survey having been once returned, no other survey can be made on the same warrant without a new order, yet if a new survey be made and accepted and patent issued, it is good, if no third person’s claim intervened but that of one who consented to such new survey, and encouraged the purchaser to make improve ments.
    This was a writ of error to the Court of Common Picas of t-he county of Dauphin, in an ejectment brought by the plaintiff Adam Light, against the defendant Thomas Woodside, for 500 acres of land in that county. The jury give a verdict for the defendant, and judgment was rendered accordingly.
    The plaintiff claimed under a warrant to his father Ludwig Light, dated the 9th of October, 1787, on which a survey was made the 21st January, 1789, and a patent was issued the 6th February, 1818.
    The defendant claimed under a warrant to John Light, dated the 15th August, 1780. On the 16th February, 1805, John Light conveyed to Lazarus Wingate, for whom a survey was made on the 2d September, 1805, and a patent was issued the 27th September, 1805. When the survey was made for Wingate, b}>Levi G. Hollingsworth, the deputy surveyor, Wiliam Light was present, and showed his lines which included the land in dispute. Improvements were made on this land, with the knowledge of Adam Light, who never claimed it until the year 1818, when being informed that it fell within the lines of his survey, he set up a claim to it.
    It appeared also in evidence, that a survey, not including the land in dispute, was made on John Light’s warrant on the 23d of September, 1790, by Bar tram Galbraith, who acted as deputy surveyor of the district. This survey was afterwards found among the papers in the surveyorgeneraPsoffice, withan indorsementonitin the handwriting of Daniel Broadhead, surveyor general, “not accepted — not commissoned,” meaning as was supposed that Bar-tram Galbraith had not been then appointed by Daniel Broadhead as his deputy, though he was afterwards appointed on the Sth November, 1791. The fact was that Galbraith was the only acting deputy of that district from the year 1762, to the 25th April, 1800, when he was superseded and Mr. Clark appointed in his place. But Broadhead who was appointed surveyor general on the 3d November, 1789, (on the death of John Lukens,) conceived that he had a right to reject the survey of Galbraith, which was made before he had appointed him a deputy.
    Certain points having been proposed by the plaintiff in the court below, the court refused to charge the jury, that a survey having been made and returned on John Light’s warrant, whether it was accepted or not, no other survey could be made without the order of the board of property: but charged that when a survey was made and rejected by the surveyor-general, and the owner acquiesces in such rejection, the deputy surveyor may make another survey without a new order.
    
      Douglas and Fisher, for the plaintiff in error,
    insisted on this as an error. When a survey has been made and returned, the authority vested in the deputy is executed and no new survey can be made without a new authority from the surveyor-general or board of property. In Deal v. M‘Cormick, 3 Serg. & Rawle, 349, 350, Duncan, J. says the warrant by the survey and return is functus officio, the command of the surveyor-general has been obeyed: the power of the deputy is at an end: that such has been the course of decision, and that when the survey has been completed on the ground, a new survey cannot be made without new directions. And the court held such subsequent survey void. The same principles are declared in Smith v. Fultz, 4 Serg. & Rawle, 473, and Healy v. Moul, 5 Serg. & Rawle, 181.
    
      Elder, contra,
    contended that by the rejection of the surveyor-general the warrant was rendered void, and a new survey might bemadeas a matter of course. It is at any rate too late forthe plaintiff to make this objection now, when the survey of Hollingsworth has been accepted and patented. The acceptance of a patent was a confirmation of the act of Hollingsworth in making the survey. This survey was made with the consent of the persons holding both the warrants, and no other persons were concerned. The survey of Galbraith was never returned. The return was not received in the office. Then the first survey being a nullity, the patent granted on the second survey was sufficient evidence that that survey was made by a person having full power.
   The opinion of the court was delivered by

Tilghman, C. J.

(After stating the facts.) Broadhead, who was appointed surveyor-general, on the 3d November, 1789, (on the death of John Lukens,) conceived that he had a right to reject the survey of Galbraith, which was made before he had appointed him a deputy. Whether the law was so, or whether John Light had a right to insist on the acceptance of the survey made by one who was de facto deputy surveyor of the district, and many of whose returns of survey had been accepted, is not now the question. He did not insist on it, but acquiesced in the rejection. But the diffirculty on the trial of this cause was, that the survey of Hollingsworth was made without any new order or authority from the surveyor-general. The law, in general, undoubtedly is, that a survey having beenonce returned, no other survey can be made, on the same warrant, without a new order. And therefore, it is clear, that if a third person had appropriated the land, before the survey made by Hollingsworth, he would have held it. But that is not the case. When that survey was made, the land was vacant, unless included in Adam Light’s survey. But Adam Light disclaimed it. The survey for Wingate was made in his presence, and with his approbation. When Hollingsworth made It is return, I will not say, that it might not have been rejected. But it was accepted, and after-wards a patent issued on it. Under these circumstances, Adam Light’s mouth is closed against any objection, nor ought the commonwealth to take advantage of a defect, which has been overlooked by its superior officers. Every thing substantial has been done. A survey has been made by the deputy of the district; this survey has been accepted, the purchase money and fees of office paid, and the title confirmed by patent, and all this, without intefering with the right or claim of any individual, except Adam Light, who assented to the survey, and encouraged the purchaser to make improvements. It has not been shown, that in such a case, this court has ever decided against the title of the patentee, and I think it ought not. I am of opinion, therefore, that there was no error in the answer given by the President of the Court of Common Pleas, to the questions proposed by the plaintiff’s counsel, and the judgment should be affirmed.

Judgment affirmed.  