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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 196   View pdf image (33K)
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    SURPLUS land is the excess included within the
bounds of surveys, prosecuted to patent, beyond the
quantities intended and declared to be granted; arising from the
practice of surveyors of stating the distance from one
boundary, natural or artificial, to another, on erroneous
measurement, or by estimate, without any actual measurement
at all; and, it has always been distinguished from vacant
lands as having been, (though erroneously or fraudulently)
so included; for the general definition of the latter is that it
has never been granted.
The wrong done to the
proprietary in this particular was very early felt, and complained
of: it was the business of his officers to discover the cases in
which it existed; and, owing probably to their activity, the
patentees holding such surplus were led in numerous
instances to take warrants of resurvey, for the purpose of
ascertaining the quantities of land thus improperly held, and
paying therefor, either on the terms of the original grants, or
according to the conditions of plantation existing at the time
of discovery; upon which, patents of confirmation issued
for the whole, together with such vacant land, thereto
adjoining, as had been included in the resurveys. The
subject of surplus land, however, though regulated pretty much
by the will of the proprietaries while the government of the
province remained in their hands, fell afterwards under
different interpretations, and was one of the principal grounds
of the land laws, the first of which was passed in the year
1699. The principal intention of this law was to restrain the
proceedings, and limit the power, of the proprietary, in
respect to the excess arising from error or fraud in the early
surveys, by declaring that boundaries or calls should be
respected if they could be established, and could be gratified by
certain specified extensions of the courses claiming them.

The operation, and the respective times of duration, of the
several laws of this kind which were successively enacted
will hereafter be noticed. For the present, it remains to be
observed that the proprietary, objected to the first law as
infringing his rights and property, that his objections, and the
answers of which they were susceptible, with the various
disputes that took place on the question of a rightful power
in the government to regulate the forms of surveys, and the
interpretation of ancient grants, produced a long chain of
legislative proceedings, which did not subside, or result in

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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 196   View pdf image (33K)
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