Manor Mining & Manufacturing Co. v. Sincell

³⁶¹ Constable, J., delivered the opinion of the Court. A special warrant was issued by the Commissioner of the Land Office, at the instance of Edward H. Sincell, directed to the County Surveyor of Garrett County, authorizing him to survey and lay out a certain tract of land in Garrett County alleged to be vacant. In pursuance of said warrant Alexander C. Mason, the surveyor of Garrett County, after complying with the requirements of law, surveyed the alleged vacant tract of land and returned to the Commissioner of the Land Office the certificate of survey, to which was attached a plot of the same. Subsequently Edward H. Sincell assigned a one-half interest therein to John T. Mitchell and directed that upon the issuance of the patent for the same it should be issued to him and John T. Mitchell as tenants in common.

Thereafter the Manor Mining and Manufacturing Company filed a caveat, protesting against the issuane of the patent. Upon a hearing before the Commissioner an order was passed dismissing the caveat and ordering the patent to issue. From that order the caveator has appealed. The grounds of the appeal are (1) that the land described in the certificate of survey is not vacant, (2) that the survey was not made in accordance with the rules of the Land Office and the laws of Maryland and (3) because it would be unjust to the caveator to have a patent issue.

The land in this case alleged to be vacant, consisting of fourteen acres and ninety-six square perches, has a width of two and one-half perches and is located between a tract of land called Crotia on the north and a tract called Fairleigh on the south. These two tracts are composed of several parcels of land, each of fifty acres, which were a portion of over four thousand lots surveyed and laid out west of Fort Cumberland in 1788 by one Francis Deakins, acting in virtue of a resolution of the General Assembly. The purpose being to grant these lots to officers and soldiers of the Revolutionary Army as bounties of land previously promised to encourage recruiting. Mr. Deakins upon the completion of the survey ³⁶² returned a general plot of the country westward of Fort Cumberland, on which, with other tracts, were laid off these four thousand lots, called Military lots, and two books containing all the certificates of survey of these Military lots.

By the Act of the Legislature 1788, Chapter 44 (November Session), this plot and the books of certificates were lodged in the Land Office, and the books of certificates were therein authorized to be considered to all intents and purposes as record books of that office. The contention of the caveatees is that the certificate of survey for these Military lots as well as certificates of resurvey of the tracts Crotia and Fairleigh show that there is this strip of land not embraced in any or either of these aforesaid tracts. The caveator on the other hand contends that a portion of the strip is contained in the lines of the original Military lots now owned by it. And that if any of the part intended to be patented is embraced in a former survey then the patent for the whole must be refused.

This principle of law is not open to question. The caveator owns two of the Military lots about the eastern end of the tract claimed to be vacant; one lot being north of the strip and the other south. The one on the north being a part of Crotia and the one on the south a part of Fairleigh. The one on the north is numbered 361 and the one on the south 287.

The contention of the caveator being that the south line of the former is the north line of the latter. In other words that the two tracts are contiguous, and there is no vacant land between them as claimed by the caveatees. To support the issues raised by the caveat, testimony was taken before the examiner of Garrett County by the respective parties, and several certified copies of deeds, certificates of survey of the Military lots made by Déakins and certificates of resurvey of Orotia made in 1840 and of Fairleigh made in 1853, were filed as exhibits and returned, and are now contained in the present record. The only witness, produced by either party, bearing upon the question of the fact of the vacancy was Mr. Mason, the ³⁶³ County Surveyor of Garrett County, who was produced upon behalf of the caveatees.

We have considered closely and carefully all the testimony offered on this point including a .careful study of the certificates of survey in connection with the plats offered, and have arrived at the conclusion therefrom that this land claimed by the caveatees is vacant land. Briefly stated we have reached this conclusion for the following reasons: In the first place, the plot filed by the caveator, assuming it to be a correct copy of the one made by Deakins, shows the lots of the caveator, before mentioned, numbers 361 and 287, to be contiguous. If a true running of the lines of the certificates