¶1It appears by the record that the plaintiff's survey, under which he claims, was made in November, 1841. That is the survey set out in his original, and appended to his amended petition; and it is by virtue of, and in accordance with that survey that he seeks to recover. The survey made in 1840, which was not made in accordance with law, and which was changed in making the new and correct survey 1841, having been abandoned and lost sight of, cannot now be set up as having interposed a barrier to other surveys which may have conflicted with it when made. It interposed no legal impediment to the making of the survey upon the Archer certificate, under which the defendant holds, in June, 1841. That survey was a legal appropriation of the land from its date; and it is quite too clear for argument that it could not be dig* *781placed, or affected by the defendant’s survey subsequently made. In making the correct and only legal survey upon the plaintiff’s certificate, in November, 1841, the Surveyor ought to have made his survey in such manner as to have included the requisite quantity of land, not previously appropriated. He had no authority or right to disregard and conflict with prior surveys. But the owners of such prior surveys cannot be affected by his wrongful acts. By the use of ordinary diligence, the holder of the plaintiff’s certificate might have known and avoided the conflict. It was his duty to find vacant land, when he came to make a correct survey upon his certificate, in 1841; and if he failed to do so, he alone must suffer the consequences. It is perfectly clear that the survey, under which the defendant claims, was a legal survey and appropriation of the land it embraced, at the time it was made ; and no subsequent wrongful or fraudulent act of the Surveyor, could confer upon another a right to any part of the land thus appropriated. There manifestly .is no error in the judgment and it is affirmed.
¶2Judgment affirmed.