Blakemore v. Chambles
| Citation | 1 Tenn. 3 |
| Parties | BLAKEMORE v. CHAMBLES, |
| Decision Date | 31 May 1799 |
| Court | Tennessee Circuit Court |
A subsequent enterer is not to be affected by the mistake of a surveyor in surveying a prior entry.
Ejectment.--The plaintiff claimed under a grant for a pre-emption right. The defendant under another pre-emption right, for which a grant issued to the heirs of Murray. ____The defendant claimed under the oldest entry, but the youngest grant. The question in this case depended upon the manner in which the surveys were made. At the time of Murray's survey, his heir-at law was a minor, nor was he present when it was made, but it was proved to have been done by a surveyor, duly authorized.
After Murray's survey, as above, the survey of Blakemore was made, to include his improvement and calling to adjoin his survey. The heir of Murray came of age, and finding, as he suggested, that his survey was not made agreeably to his entry, caused another survey to be made in such a manner as to include a part of Blakemore's land. Upon this second survey, Murray obtained a grant.
The question before the court and jury, was, whether another, or a resurvey could be made for Murray different from the first, so as to affect Blakemore's.
It appeared by the testimony of the surveyor of Blakemore's land, that he conformed his survey to Murray's, as it was the oldest, and called to adjoin it.
For the plaintiff, it was contended that the surveyor was a sworn officer, whose duties were prescribed by law, having no reference to the will of the enterer, except so far as it was expressed in the entry. The law had made it his duty to run out agreeably to the entry, “as nearly as may be”--he was sworn to do so, and consequently his opinion, whether the running was agreeable to entry must direct him.
The party entering, had no control over him, nor was he subject to the directions. So far from this, that the law had made it the duty of surveyors to survey within limited times; and in this direction, no reference is made to the will, or directions of the claimant.
There is another reason supporting this position. Our land law makes it the duty of surveyors, to survey the oldest entries first; this provision of the law would be nugatory if the surveyor were obliged to await the instructions of the claimant before he could survey.
If the surveyor was bound by law to make the survey independent of the will of the party, the claimant, though an infant, was bound by the survey.
It is not absolutely necessary to determine now whether in any case a resurvey can be made, when the authority given the surveyor has been once executed.
A survey was once lawfully made, and if in any case a resurvey can be made, it could not in this, where it would affect a survey which adjoined the one first made.
The different acts of assembly, respecting the mode of obtaining titles to vacant land, must be construed in pari materia, 5 Com. Dig. 256. General usage may explain 5 Com. Dig. 256, R. 10, 11, 258, R. 16; directory acts of the legislature, 1 Bur. 332, 447; the reason of entries, Ird. Rev. 293, sec. 6; survey agreeable to entry, 483, sec. 7, 293, sec. 10, 448, sec....
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