Gittings v. Moale

Bartol, J., delivered the opinion of this Court: This is an appeal from a decision of the Commissioner of the Land Office, overruling a caveat of the appellants, and ordering that a patent for the land in controversy be issued to the appellee. 'Before considering the case upon its merits, it is necessary to dispose of a preliminary question raised by the motion to dismiss the appeal. The Act of 1853, ch. 415, gives the right of appeal in such cases, to “any parties aggrieved by the judgment” of the Commissioner. In this case it is alleged the appellants are not aggrieved by the judgment, because “they have no interest in the controversy,” and are therefore mere “pragmatical objectors.” On this ground the motion to dismiss is based; and if the fact'were as alleged, of course the motion would prevail, because a party having no interest in the subject- ¹⁴⁵ matter, a mere stranger could not be aggrieved, and therefore would not be heard as caveator or appellant. We think, however, this record discloses that the appellants have a substantial interest in the subject of the controversy, which would be injuriously affected by the Commissioner’s judgment.

This will appear by a recital of the facts as shown by the record. On the 26th of October 1854, the appellee obtained a special warrant to resurvey a tract called “Upton Court,” with power to attach contiguous vacancy. On the 24th of October 1855, the surveyor returned to the Land Office his certificate of survey under this-warrant, stating therein that lie Lad addei two acres and thirty perches, more or less, and which he had called “‘Moale’s Security.’ It being the same parcel of land heretofore surveyed and returned by me, to the Land Office, by virtue of a special warrant issued therefrom, to John S. Gittings, on the 14th day of October 1852, and called-therein ‘ Randle’s Disappointment.’ ” It appears also from the rtcord, that a caveat had been* filed in the Land Office, by the appellee, against the issue of a patent for “'Randle’s Disappointment,” which was pending, and by the agreement of counsel, was to be heard and disposed of upon the same proofs as were taken in the-present case. The special warrant under which Gittings, one of the appellants, claims, although not exhibited iu the record,plainly appears to cover the land in controversy, and to have been prior in date to that of the appellee, and thus discloses his interest, and his right to he heard as caveator.

Three several caveats were filed by the appellants, the first on tbe 1st November 1855, the second on the 3rd November, 1855, and the third on the 13th February, 1856. The last being the only one verified by affidavit, as required by tbe rules of the Land Office, tbe appellee contends, is the only one entitled to be considered, and at that time the special warrants had expired, and all interest which the ¹⁴⁶ appellants might have claimed tinder them had ceased'. It is sufficient to say in answer to this suggestion, that it appears by the very agreement referred to, that a caveat had been filed, and was undisposed of, and therefore under the rules of.the Land Office, the special warrant of the 14th of October 1852, it must be assumed, had not expired. We think the motion to dismiss this appeal should be overruled.

Under the Act of Assembly, the appellants filed their “reasons for appeal.” These are five in number, but it will be necessary for us to notice only the third, which is as follows: “Because the proof in the cause shows that said Moale was not the owner of any land contiguous or adjacent to that included in said return as vacancy; and that between the land covered by the above specified warrant as vacancy, and that now in the possession of said Moale., there was land shown by the proof in the cause to be the property of, and held and possessed by, persons other than said Moale, and which prevented all contiguity between said vacancy and Moale’s possessions.” The legal principles asserted in this objection are well established, ihat is to say, a party must he seized in fee of land to entitle him to a warrant of resurvey; and under such warrant, a patent will not be granted for lands as vacancy which are not contiguous. For these elementary rules of the Land Office, it is sufficient to refer to the authorities cited by the appellants in the first and second points of their brief. The decision of the case therefore turns upon an examination of the facts, as shown by the locations and other proofs in the record. These we have carefully examined, and are all of opinion the appellee has failed to establish the required contiguity.

His title is presented by the record in two aspects: First, as derived under the will of his father, John Moale, proved the 11th of July 1⁷⁹⁸; and