presumption arises that the survey was regularly made in conformity with the return. After twenty

one years, by analogy to the statute of limitations, it will be considered a presumption of law. Yet if it plainly appears that only one line of the survey was actually run, or if there be several lines, but they are so imperfect as not to designate the shape or contents of the tract, the survey is not valid.(1)

Regularly the survey is made by the surveyor of the proper district in which the land lies, to whom it is directed, or by his successor in office, who may make it on a warrant directed to his predecessor.(2) By the proprietary instructions of 1765, the deputy surveyor was to execute warrants to him directed. But the surveyor-general exercised the power of making special deputations to persons not the regular officers of the districts, and these surveys, if accepted, were good.(3) This power is not taken away, by the act of 1781, from the surveyor-general under the commonwealth: and under the act of 1785 a survey made on a warrant not directed to the deputy of any particular district, is good, if accepted by the surveyor-general, and not interfering with another survey.(4)

(1) 13 Serg. & Rawle 121, 384; 2 Watts 390; 2 Serg. & Rawle 460; 7 Serg. & Rawle 220.

(3) 7 Serg. & Rawle 334.

(2) 2 Serg. & Rawle 559. (4) 3 Serg. & Rawle 325. See 1 Yeates 286; 2 Yeates 147, 219, 245; 2 Watts 292; 2 Sm. Laws 201; 1 Yeates 206; 2 Watts 288.

R

CHAPTER XVII,

CHANGE OF SURVEY.

ALTHOUGH a survey has been duly made, and the lines run and marked on the ground, yet so long as it is not returned by the surveyor, he has it in his power, if the owner requests it, to go again on the ground and alter the survey, by running and marking it anew, so as to throw out part or embrace new vacant land (not exceeding in the whole the legal quantity), provided it be done in a reasonable time, and no third person's right has intervened. For the vested right of another, accruing between such first and second survey, cannot be affected by a change of a survey once made. (1) But if a survey has been returned, it must stand as returned, the deputy surveyor is functus officio, the authority of his warrant is exhausted. The proper course is for the party interested to apply to the board of property, who may order a new or re-survey, it being however understood that it cannot affect the intervening right of another.(2) These rules do not apply to a survey altered by the deputy after return and patent issued, when the adverse party stood by and encouraged the other to proceed.(3)

(1) 14 Serg. & Rawle 377. 1 Penn. Rep. 3 Penn. Rep. 299.
(2) 2 Watts 397.
(3) 10 Serg. & Rawle 23.

any mis

Should a deputy surveyor be guilty of conduct in the making of a survey, the owner ought to make speedy complaint to the land office. For in the absence of complaint, he will be considered as having waived objection, and if the survey is made and returned, it will be presumed to be done with his consent and approbation, and will be considered his own act.(1) This, however, is on the presumption that he had notice of the misfeasance of the officer. Sometimes there has been fraud in the deputy surveyor, with a view to promote his own benefit or the preference of his friends, by clandestine acts in making and returning surveys.(2) Such fraud is deemed the act of the officer, and is not suffered to injure the other party.(3) Parol evidence is admissible to show this, or to show that laches in the prosecution of his right is imputable to him.(4)

Besides entering the warrant in his book, and going on the ground and measuring and marking the lines, it is the practice of deputy surveyors to keep notes of their work, called field notes, entered in a memorandum book in a journal form, of each day's work, stating the marks and courses and distances and boundaries, and the material events that occur. These he keeps in his possession, and they are sometimes referred to to explain surveys.

(1) 2 Yeates 88.

(2) 4 Binn. 161.

(3) 4 Binn. 58, 163. 12 Serg. & Rawle 130.
(4) 1 Yeates 285.

CHAPTER XVIII.

RETURNS OF SURVEY.

HAVING finished the survey and plotted it, the surveyor ought to return it to the office of the surveyorgeneral. This is an important part of his duty. Many regulations and laws have from time to time required it, and from its omission frequent disputes have occurred. The deputy surveyor, however, is not obliged to return the survey until his fees and expenses are paid; and if the failure to return is occasioned by the neglect or refusal of the party to defray them, any loss thereby sustained is imputable to him, and not to the officer. The regulations of the proprietaries and the acts of assembly concur in directing the return to be made, on paying for the survey.(1) By the act of 4th September 1793, returns of surveys, made since the 4th July 1776, were made receivable, though the surveyors were out of office when such returns were made-unless they had been more than nine years out of office.

If the party pays or tenders the fees, it is the duty

(1) 2 Sm. Laws 163; 2 Yeates 89; 2 Penn. R. 396; 5 Sm. Laws 11. Post, Appendix No. II, III.

of the surveyor to return the survey in a convenient time, and the neglect or fraud of the surveyor will not affect his rights. But it lies on the party to show that the want of a return was not occasioned by any default or neglect of his own; and if there is nothing to show that the surveying fees were paid, the inference is that they were not paid. The deputy being a sworn officer, is, prima facie, presumed to have done his duty.

These rules apply in all cases. For when it is said that the title on a descriptive warrant commences from the date, on a vague warrant from the survey, and on a shifted warrant from the acceptance of the return, it is always understood, provided the survey is returned in a reasonable time. The party claiming by any of these is not to lie by whilst another is expending his money, time and labour on the land; nor can the surveyor-general, by accepting a survey out of time, ratify a title otherwise gone by lapse of time and neglect. What is the period of time for the return of survey is not determined. A delay of more than twenty-one years, where an adverse claimant has had possession, would be considered as fatal, if no possession has been taken, or ownership claimed or exercised by the party; for he cannot thus retain the power to return it as land, or change it, or pay the purchase-money due, or not, as he pleases. When there are no facts to be left to the jury to rebut the presumption, the proper time is a question of law. (1) law.(1)

(1) 15 Serg. & Rawle 224; 2 Penn. R. 397; 1 Penn. Rep. 74, 458.