declined talcing any part in the decision, having been appointed one of the executors of Stephen Chambers, esq., who claimed one third part of the lands in controversy.

I feel no difficulty whatever sitting alone in this cause. It is so plain, that it cannot be perplexed. The instructions formerly given to the deputy surveyors, and their usage will readily determine the dispute between the parties.

The deputy surveyors under the late proprietaries “uniformly received instructions to lay out all lands that adjoin rivers *132or large creeks, at least three times the length from the river or creek as they are laid out in breadth on said river or creek, so that each purchaser may have a proportionable fronton the water; provided the ground will in any wise admit of it, and to lay out all lands contiguous and as regular as possible.”

If there were no other warrants or applications than those they were executing, they assumed greater liberties, and if in such instances, they gave a larger front on a river or creek, than their instructions admitted, and their surveys were accepted, no injury was done, and no one could reasonably complain. The proprietaries might in such a case dispense with their usual rule, and grant their lands as they pleased. But when there were other rights, though subsequent in point of time, which also called for execution, the due proportion of front on the water and extent back, ought, in justice, to be adhered to. To deviate from the established rule under those circumstances, would do manifest injustice to third persons. I will not say, that in practice, the surveyor is restricted to one or even two perches beyond his directions, where the situation of the grounds calls for a latitude in judgment. But I will assert, that to go 902 perches by the margin of a navigable river, and where the lands back are of a quality proper for cultivation, to fill up an order for 300 acres, is altogether unprecedented, and unwarranted by any law or usage, where it would operate against the rights of others. By such improper practices, in garbling the whole of the lands of the first quality, the settlement of the country is retarded, besides doing essential injustice to individuals.

The defendant may shelter himself under either of the applications of the Ferees, as the plaintiff has not entitled himself thereto. He may rely on his possession.

The location under which the plaintiff claims is vague, but if surveyed in a reasonable manner, according to the duty of the deputy surveyor and common usage, it would cover 300 acres and allowance ; but not when laid in this unfair, unconscionable manner. I am therefore clearly of opinion, that the plaintiff is not entitled to recover in this action.

The plaintiffs counsel hereupon agreed that a verdict should be given for the defendant, but desired that the foil owing points might be reserved:

1st. "Whether the location and survey in the name of Joseph Feree, adjoining John M'Grrath and William Montgomery, should have any operation in favor of the plaintiff, under the testimony given. It is admitted that Feree’s. survey does not include the lands in question, but is bounded thereby.

2d. Whether the plaintiffs survey being made, returned and accepted, and a patient issued thereon, and the application calling for the lands surveyed which is earlier in number than that of the defendant, does not vest a title in the plaintiff' ?

This motion being acceded to, a verdict was given for the defendant.