Crow can by no means be considered as a villager, nor his right as a village right. It was not his fault that he was obliged to reside in a station, and thereby prevented from, making corn on the premises; but it was owing to the situation of public affairs, which put it out of the power of government to protect fully the citizens in this part of the state. It would therefore be unjust to consider him as a villager in this case, as it would be punishing him, not for his own fault or omission, but for the weakness of government. Equity, it would seem, requires that on this occasion, considering all circumstances, Crow ought to stand on the footing on which his original improvement would place him; but it is not necessary for the court to determine that point, in the present case.
Crow has the eldest grant, and falls short of the quantity of land to which he is by law entitled. Dougherty has the youngest grant, and by his survey (though perhaps not by his grant) 300 acres, or thereabouts, more land than he is by law entitled to.
Nothing, therefore, could be more absurd than to consider any part of the land included in Crow’s grant as surplus land in Dougherty’s ; such a determination would be contrary to reason and common sense, as well as to equity.
*50By a rational construction of the law respecting surplus lands, it is impossible to extend it to such a case as this. That law could never intend any thing to be surplus land that was included in another and elder grant; beside, it is unreasonable to suppose that the law was intended for the benefit of such persons as had got or might by some means get, probably innocently or without fraud, surplus lands, at the same time that justice was done to the state. But if it is construed to extend so far as to include every case where there may be surplus lands, by whatever means obtained, it would open a door to gross frauds.
In the present case, Dougherty is entitled to 1,400 acres of land, and in his survey 1,700 acres are included. There js no suspicion of fraud in the surveyor in this case, but surely there is a most egregious blunder, of which it does not seem consistent with fairness and equity to take advantage.
By an equitable, indeed the more favorable, construction for Dougherty of his entries, that reason and justice and the former decisions of the court will admit, his entries will not come near the land in dispute; so that his whole claim to the land in dispute stands on his survey only, which can be no sufficient foundation to rest upon.
Admitting the survey of the settlement to be such as his entries will justify, and leaving him to use his pleasure with respect to his entries on his jn’e-emption as he has done, there will then be near about 150 acres of land between him and Crow, which his entries do not extend to, whatever his survey may.
■ Injunction dissolved and bill dismissed; from which the complainant prayed an appeal.
And at a court of appeals held in Richmond, at the June term, 1791, the said decree was affirmed, and having been opened at the present term by consent of parties, in order to enable the complainant to claim the value of his improvements, etc., and a report having been made by the commissioners appointed to value the improvements, and ascertain the rents and profits, etc., by which the accounts were reported to be balanced. It was now decreed and ordered that the complainant’s bill should be dismissed, and that he should pay costs, etc.
Note. — It appears that William Crow’s entry on certificates bear date before the time of obtaining his certificate. It does not appear by the papers how this happened, but it is more than probable that George Clark assigned both the certificate and the entry *51on it as actually made, but how the entry stands on the surveyor’s book, as made in the name of William Crow, assignee, etc., before Crow had a right to enter at all, can not be satisfactorily accounted for.
It is also worthy of remark, that although it was contended by the defendant’s counsel, and seems to have been admitted by the court, that Crow was driven for safety into a station, in 1776, the fact did not appear in evidence in the cause; on the contrary, Crow states in his answer the reason why he made corn at Fisher’s station and not on his own land, in the following words, to-wit: “that he made further improvements thereon, in 1775, and came to the country in 1776, with a view to settle on said land and to raise a crop of corn, but meeting with unavoidable delays, he found it was too late in the season to make the necessary preparation on said land, therefore he went and raised a crop of corn at Fisher’s station,” etc.