19 March 1816 § 1. ciation surveys, shall be as valid as if the same had been made within the time specified in said act.(p)

6 Sm. 380.

Ibid.

Act 1 March 1811

extended.

Ibid. § 2.

From what time interest on mortgages to be payable.

8 April 1792 § 10. 8 Sm. 73.

Purchase-money

a lien.

If not paid within ten years, land

may be granted to

others.

95. All the provisions of the act, entitled "An act to encourage the warranting and patenting of lands north and west of the rivers Ohio and Allegheny and Conewango creek," passed the 1st day of March 1811, shall be and the same are hereby re-enacted and continued until the 1st day of November, in the year of our Lord 1817.(9)

96. Any person or persons who have received a patent or patents on mortgage, for any lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, under the law of the 1st day of March 1811, entitled "An act to encourage the warranting and patenting of lands north and west of the rivers Ohio and Allegheny and Conewango creek," and any person or persons who shall hereafter receive their patents under the said law, shall only be required to pay interest on the principal due on such mortgage, or upon such lands, from the expiration of five years after the date of the first improvement made on the land therein described.

1.) Of the purchase-money.

97. The lands actually settled and improved according to the provisions of this act, to whosesoever possession they may descend or come, shall be and remain liable and chargeable for the payment of the consideration or purchase-money, at the and interest to be rate aforesaid, for every hundred acres, and the interest thereon accruing from the dates of such improvements; and if such actual settler, not being hindered as aforesaid, by death, or the enemies of the United States, shall neglect to apply for a warrant for the space of ten years(r) after the time of passing this act, it shall and may be lawful to and for this commonwealth, to grant the same lands, or any part thereof, to others, by warrants, reciting such defaults; and the grantees, complying with the regulations of this act, shall have, hold and enjoy the same to them, their heirs and assigns; but no warrant shall be issued in pursuance of this act, until the purchase-money shall be paid to the receiver-general of the land-office.(s) 98. In all cases where patents may hereafter be issued from the land-office for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, When payment of the person or persons receiving the same shall only be required to pay interest on the principal sum due, from the expiration of five years after the date of the first improvement made on the land therein described.

14 Feb. 1817 § 1. 6 Sm. 396.

interest to com

mence.

24 March 1818 § 1. 7 Sm. 122.

Donation lands.

Ibid.

What to be evi

99. Whereas, by the act to which this is a supplement,(t) the surveyor-general was directed to survey into lots of different dimensions, lands given to the officers and soldiers of the Pennsylvania line, for their services during the revolutionary war, certain unappropriated lands lying north and west of the rivers Allegheny and Ohio. And whereas, in pursuance of the provisions of the law, ten districts of donation lands were laid off, surveyed and returned into the surveyor-general's office, designated and known by ten separate drafts, all of which remain on record, and patents, in pursuance of those surveys, have been issued to persons entitled to them, according to their respective numbers, as marked in each district, and represented by the marks on the corners of lots, and numbered on the several drafts of each district.(u) And whereas, great difficulty exists in ascertaining the respective tracts, in consequence of the obliteration of the marks on the corner trees, from a variety of causes, either by lapse of time, the burning of the wood, or the improper conduct of persons interested or mistaken in their views. And whereas, in ascertaining the respective lots, it is not only proper but very necessary, that the respective owners should be governed by the general drafts and the records of the state: Therefore,

100. In all cases of dispute or controversy respecting any boundary or boundaries dence of boundary. in any or either of the donation districts, respecting any lot or lots therein, as marked, surveyed and returned into the surveyor-general's office, in pursuance of the act entitled "An act for directing the mode of distributing the donation lands promised to the troops by this commonwealth," passed the 24th day of March 1785, the general drafts of the said surveys, as returned into the surveyor-general's office, shall be the evidence of the location of the respective lots; and official copies of the said drafts, or any or either of them, or of any part or parts thereof, shall be evidence before any court of competent jurisdiction, in order to designate the

(p) Time further extended, see supra 78, note. (4) Time further extended, see supra 75, note i. (r) Time extended by acts 26 January 1802, P. L. 24; 4 April 1805, P. L. 270; 28 March 1808, P. L. 150; until the year 1811.

(8) This section contemplates that the party whose title is forfeited for non-payment of purchase-money, is himself the actual settler, and may be in possession. Wilson v. Horner, 59 P. S. 155.

(t) Act 24 March 1785, 2 Sm. 290. For a history of

the title to lands within the donation districts, see Little v. Hodge, 1 P. & W. 503. McCall v. Coover, 4 W. & S. 151. And for an account of the depreciation district, see Varnum v. Kennedy, 6 S. & R. 155-63. See also Jones on Land-Office Titles 200.

(u) An assessment of a tract of donation land by a wrong number, will not vitiate a sale for taxes, if there be any other designation by which it can be identified. Woodside v. Wilson, 32 P. S. 52.

situation of any or every lot, so far as regards its relative situation with the other 24 March 1818 § 1. lots.(v)

101. It shall be the duty of the deputy-surveyor of the proper district or county, on application made to him by any person interested, to run and distinctly mark the lines of any lot or lots, and to re-mark the original corners, agreeably to the true meaning and intention of the first section of this supplement. And, in order to carry this into effect, it shall be the duty of the surveyor-general to furnish each deputy-surveyor, free of expense, with a certified copy of the general draft of the donation lands, so far as they lie in his district or county, which shall be open to the inspection of any person or persons, they paying the customary fees: Provided, That nothing in this act contained shall be construed to affect the right of bona fide purchasers, in cases where the original marked lines can be ascertained.

102. It shall and may be lawful for the secretary of the land-office to extend the provisions of the act to encourage the warranting and patenting of lands north and west of the rivers Ohio, Allegheny and Conewango creek, passed the 1st day of March 1811, to the settlers or owners of the undrawn donation lands within this commonwealth.(w)

7 Sm. 122. Ibid. § 2.

Duty of surveyors.

9 April 1828 § 1.

10 Sm. 124.

Act of 1 March tended to donation

1811 may be ex

lands.

P. L. 277.

103. The purchasers of undrawn donation lots shall not be required to pay 5 April 1882 § 2. interest on the purchase-money on the donation tracts of land, prior to the date of the act authorizing the sale of the said lands or lots, passed the 6th day of March When payment of 1813.(x)

interest to commence.

recited therein.

104. No conveyance or assignment of lands granted to soldiers and widows of 11 March 1848 § 5. soldiers of the revolutionary war, made by such soldiers or widows, prior to the P. L. 80. date of the respective patents, or any transfer or sale of the right of said soldiers Conveyance prior or widows by them executed, prior to the date of said patents, shall invalidate the to patent to be title of the said patentees, their heirs and assigns, unless there shall be contained void, unless in said patent a recital of such deed, conveyance, transfer or assignment, or unless the same shall have been duly recorded in the proper office of the county in which the lands are situated: Provided, That nothing in this act contained shall be construed to confirm or render valid any conveyance or transfer by such soldier or widow which was prohibited by law.

P. L. 512.

105. The provisions of an act of the general assembly of this commonwealth, 11 April 1848 § 4. entitled "A supplement to the act entitled 'An act for the sale of vacant lands within this commonwealth,'" approved the 3d day of April 1833, (April 3d, 1833,) Actual settlement be and the same are hereby extended and declared to apply to all donation tracts on donation lands of lands lying in any of the donation districts north and west of Ohio river and dispensed with. Conewango creek, in the commonwealth of Pennsylvania, as fully and effectually as if the said donation lands had been especially named in said act referred to.(y)

VII. Of lands in navigable rivers.

(1.) Of islands.

106. Upon application made by any person to the land-office, for a warrant of 6 March 1793 §1. survey, to cause any island lying in the river Susquehanna or any of its branches,

3 Sm. 94.

so far as such branches have been declared public highways, to be surveyed for Sale of islands in the use of such applicant, it shall be lawful for the officers of the land-office, and the Susquehanna they are hereby directed to issue such a warrant, upon the conditions, and under regulated. the restrictions and limitations (2) hereinafter mentioned: Provided, however, That no such warrant shall issue, directing any of the aforesaid islands to be surveyed, which has been surveyed and returned in the surveyor-general's office for the use of the late proprietaries, prior to the 4th day of July 1776.

Ibid. § $2.

Owners of im

107. When any person shall apply as aforesaid, for any such island, he shall state whether any improvement has been made upon the same; and if any improvement has been made, he shall also state the nature of such improvement, and provements to when and by whom made; and no warrant shall issue, directing any island thus have pre-emption improved to be surveyed, except in favor of the person who has made such right. improvement, or in favor of his heirs or assigns, for the term of two years after the passing of this act; after the expiration of which term, warrants of survey may issue for such improved island, in favor of such person or persons who shall first apply for the same; (a) and if any such warrant shall issue otherwise than

(v) The number on the corner tree controls the boundaries in the general draft. Smith v. Moore, 5 R. 348. Donation surveys are always known and identified by their numbers. Greeley v. Thomas, 56 P. S.

35.

(w) See supra 71, 75, 76.

(r) Act 6 March 1813, 6 Sm. 64. (y) See supra 73.

(z) Islands in the great rivers of Pennsylvania were never the subjects of appropriation by office right or settlement, under either the provincial or the state government; from the first settlement of the country, they were withdrawn from appropriation,

at the prices fixed for other land, and each was to be sold for the best price that could be obtained. Hunter v. Howard, 10 S. & R. 245. Johns v. Davidson, 16 P. S. 512. Jones v. Tathman, 20 Ibid. 398. Fisher v. Haldeman, 20 How. 186. Fisher v. Carter, 1 Wall. Jr. C. C. 69.

(a) Though it is incumbent on the improver to state the nature of his improvement, and when and by whom made, this is not necessary in the application of another who applied for the island more than two years after the improver had neglected to make application for it. Johns v. Davidson, 16 P. S. 512.

3 Sm. 94.

6 March 1798 § 2. aforesaid, it shall be deemed to have issued by surprise, and shall be of no avail in law, and the moneys paid for the same shall be forfeited for ever to the commonwealth.

Ibid. § 3.

Caveat may be entered and deter

108. Any such person who may claim any such island or islands, by virtue of his improvement or of any other right, may enter a caveat in the usual form, against any person or persons claiming the same; which caveat or caveats shall be decided mined by board of upon by the board of property, in the same manner as in other cases where the property. said board of property have power to judge and determine.(b)

Ibid. § 4. How price to be fixed.

Ibid. § 5. Warrants not to issue, except in certain cases.

Ibid. § 6.

Patent, when to issue.

Ibid. § 8.

Prior rights reserved.

2 April 1822 § 1. 7 Sm. 549.

cant.

Ibid. § 2.

Ibid. § 8.

109. The board of property shall, with the approbation of the governor, ascertain the just value of the islands, whether improved or not, that may be applied for as aforesaid, having regard to the soil, wood and distance from the main land, and to the advantages that may be derived from the same in regard to fisheries: Provided, That the lowest price by them fixed, shall not be less than eight dollars by the acre.

110. No warrant of survey shall issue for any of the said islands, unless the same is susceptible of cultivation, nor to any person whatever, unless he shall have paid the whole amount of the purchase-money to the receiver-general of the landoffice; nor shall any such warrant issue for any less quantity of land than the whole of such island.(c) And all sand-bars and islands, not susceptible of cultivation, and not surveyed and returned into the surveyor-general's office, for the use of the late proprietaries, prior to the 4th day of July 1776, shall be and remain common highways for ever.

111. When the purchaser shall have made full payment of all the purchasemoneys of any such islands, it shall be lawful for the governor to grant him a patent, in the usual form of the land-office, vesting the same in him, his heirs and assigns for ever.

112. Nothing in this act contained shall be construed or taken to bar or defeat any person or persons, bodies politic or corporate, of any just right which he or they may have in or to any of the said islands; but all and every such right shall be and remain of the like force and effect, as if this act had not been made.

113. No application shall be received in the land-office for any island in the river Susquehanna, unless the same be at least four feet high above common low water, containing at least forty perches of ground exclusive of rocks, be susceptible of cultivation in grain or esculent roots in common seasons, by their growing and becoming maturely ripe.

114. Any sand or gravel bars, or accumulations of mud in the river Susquehanna, which shall not come under the description of an island, as described in the preceding section, shall be considered as a part of the public highway.

115. It shall be the duty of every person making application under the act directAffidavit of appli- ing the sale of certain islands in the river Susquehanna, to accompany the application with an affidavit, that the island applied for is within the description, and has all the requisites prescribed by the first section of this act, and that no act hath been done by him or any person under whom be claims, to create or cause the accumulation of such island.

27 Jan. 1806 § 1. 4 Sm. 268.

116. The officers of the land-office, upon application to them made for a warrant of survey for any unappropriated island in the rivers Delaware, Ohio and Allegheny, or any of their branches, which are by law declared public highways, shall islands in the Del- and they are hereby directed to issue such warrant, under the conditions and lim

When warrants

may issue for

aware, Ohio or Allegheny.

Ibid. § 2. How value to be estimated.

itations hereinafter prescribed. (d)

117. The officers of the land-office (on application made for an island as aforesaid) shall appoint three disinterested reputable persons to estimate and value the land in such island, who shall, before they enter on the duties of their appointment, take an oath or affirmation before a justice of the peace of the proper county, or some other person legally qualified to administer the same, that they will justly estimate, and a true valuation make of all the land per acre contained in such island, and also that they are not interested in the purchase of any island in the rivers aforesaid; which persons thus appointed and sworn or affirmed, shall proceed to value the land in such island or islands, by going on the same, and having regard to the soil, wood, fisheries, other advantages and local situation thereof; and the said persons, or any two of them, having agreed on the real valuation per acre of all the land contained in such island or islands, having regard as aforesaid, shall certify the same, under their hands, directed to the secretary of the land-office, who shall thereupon issue a warrant to such applicant, he having first paid to this com

land, would not, for that cause, be erroneous. Elliot v. Elliot, 5 Binn. 1. See Culver v. Riley, 1 Kulp 494.

(d) The acts of the state officers in appraising, granting a warrant, and surveying an island, are prima facie evidence, against a stranger, that it was subject to appropriation in that manner. Allegheny City v. Nelson, 35 P. S. 332. Territory to be liable to grant as an island, must have a soil capable of sustaining vegetation. Allegheny City v. Reed, 24 P. S.

39.

LAND-OFFICE.

monwealth, at least one-third part of the amount of the real valuation of such 27 Jan. 1806 § 2. island taken as aforesaid.(e)

4 Sm. 268.
Ibid. § 3.

118. If any island or islands in the river aforesaid, shall have any actual settlement or improvement thereon, then and in that case, the pre-emption right to such Actual settlers to island or islands shall be vested in such original actual settler or improver, or their have right of prelegal representatives, for the term of three years from and after the passing of emption. this act; after the expiration of which term, it shall be lawful for this commonwealth to grant such settled or improved island or islands, to the first person who shall apply for the same, subject to the regulations and provisions contained in this act.

Ibid. § 4.

Balance of pur

119. The balance of purchase-money shall be a lien on the lands applied for, until paid, with legal interest; and when the last payment or whole amount of the real valuation of any island or islands obtained as aforesaid, shall be paid into the chase-money to be receiver-general's office of this commonwealth, which shall be within four years after the date of the warrant, a patent shall then issue to such applicant, he paying the usual fees of office.

a lien.

of Ibid. § 5. 120. All disputes arising between adverse claimants under this act, for any the aforesaid islands, shall be decided by entry of caveats, and proceedings thereon How adverse by the board of property, as in other cases of land disputes, and the decision made claims to be shall have the like force and effect.

(2.) Of the beds of navigable rivers. (g)

decided.

P. L. 538.

Warrants may issue for the beds

of navigable rivers.

121. It shall be the duty of the surveyor-general, on application to him made, to 11 April 1848 § 1. issue his warrant or warrants, for not exceeding in quantity one hundred acres, to any one person who may apply for the same, to the deputy-surveyor of any county, directing him to survey so much of the bed of any of the public navigable rivers of this commonwealth, as may be called in said application, beginning at a point designated in the application at low-water mark on the bank of said river, and pursuing the course of said river, at low-water mark, as far as designated; then at right angles across said river to low-water mark; thence along the shore of said river, at low-water mark, to a point opposite the place of beginning; and thence across said river to the place of beginning; the original of which to be filed in the office of the surveyor-general, and a copy to be directed to his deputy of the proper county, whose duty it shall be to survey the same, and make return thereof as soon as possible.

Ibid. § 2.

Right of mining to

122. From and after the issuing of said warrant, the right (h) to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals, shall vest and be in the party in whose favor the said warrant or warrants shall issue, his be vested in warheirs or assigns: Provided, That he or they shall so exercise the said right as not rantee. in any way to interfere with the free navigation of said river, or with the rights

of any person or persons holding property on the banks thereof: Provided also, Navigation not to That nothing contained in this act shall authorize any person to undermine the be obstructed. bed of any river, the navigation of which has been improved by the commonwealth, or by any incorporated company, within one hundred yards from any dam, lock or other building necessary to said improvement, without the consent of [the canal commissioners, or] the board of managers of said company; and nothing contained in this proviso shall in any way be construed to extend to any works or mines now in operation, or to affect any rights now vested under existing laws: And provided also, That the commonwealth shall have the right, after twenty voked on making years from this date, to revoke any such warrant or grant, on payment to the compensation. party, his heirs or assigns, holding the same, the original purchase-money, and the original costs of his works, engine, &c.; such power of revocation only to be in force where there is any improvement made.

Grants may be re

Ibid. § 8.

When patents may

123. The person or persons so holding said warrant or warrants, his or their heirs or assigns, shall and may, at any time within ten years from the date of the same, have and receive a patent for the said land, under the seal of the common- issue. wealth, in the usual form, granting to them, their heirs and assigns, the right to dig and mine iron, coal, limestone, sand and gravel, fire-clay or any other mineral, on his or their paying into the treasury of the commonwealth, the usual price per acre of public lands, and the usual fees, with interest from the date of the said warrant, subject to the restrictions contained in the second section of this act: And pro- dictment for nuivided, That nothing in this act shall prevent or be a bar to any indictment for any sance.

(e) It seems, that no warrant can issue for less than the whole of an island, under this act. Jones v. Tatham, 20 P. S. 398. Culver v. Riley, 1 Kulp 494. But see act 30 April 1855, as to Windmill Island. P. L. 381. If the board of property exceed the power given them by law, in granting an island, their acts are See infra void. Hunter v. Howard, 18 S. & R. 245. 135. (g) These provisions were repealed by act 29 March But re-enacted as to Allegheny county, 1849, P. L. 255. by act 16 April 1756, P. L. 365, with a proviso, that

Act not to bar in

no person but the adjoining riparian owner should have the right to any warrant, until after one year from the date thereof. The act 11 April 1848 is also re-enacted as to Fayette county, by act 18 April 1864, P. L. 437. See Coal Co. v. Winchester, 109 P. S. 572.

(h) Such warrant and a survey thereon passes no title to the soil. The warrantee does not acquire the right to the sand deposited in the bottom of the bed of the river by the current: it remains in the state. Brandt v. McKeever, 18 P. S. 70.

P. L. 533.

11 April 1848 § 3. nuisance or injury done by any person or persons so exercising said rights, to any public or private property, or for any impediment to the full and free navigation of any of the said navigable rivers.

24 March 1849 § 1. P. L. 225.

124. The act to which this is a supplement, shall not be so construed as to grant any right or privilege whatsoever, to the surface of the bed of any river; but any rights acquired under said act, shall be confined exclusively to sinking shafts and rantees confined to mining beneath the bed of such rivers, after having obtained the right so to do, in the manner provided by said act.

Rights of war

mining.

29 April 1844 § 1. P. L. 529.

Warrants to be issued by the surveyor-general.

29 March 1792 § 1. 8 Sm. 63.

Surveyors to certify where warrants cannot be

quence of prior

appropriation.

VIII. General provisions relating to the land-office.

(1.) In reference to warrants.

125. From and after the 10th day of May 1844, the surveyor-general shall issue warrants for lands to the deputy-surveyors, in the same manner, and subject to the same conditions, as are now(i) in force in regard to the issuing of warrants by the secretary of the land-office, the original to be filed in the office of the surveyor-general, and a copy thereof directed to the deputy-surveyor of the proper county in which the land may be situated. And all patents and other papers heretofore signed by the secretary of the land-office, and countersigned by the deputysecretary of the land-office, shall, after the said 10th day of April 1844, be signed by the governor, and countersigned by the surveyor-general.(k)

126. Where any warrants, since the 1st day of April, in the year 1784, have issued, or hereafter shall issue from the land-office, and hath not been, or cannot be executed, in the whole or in part, by reason that the lands therein described, or some part of them, have been previously appropriated by or for any other perexecuted in conse- Son or persons, according to law, or having been executed, do interfere with some prior appropriation, as aforesaid, the deputy-surveyor of the district or county shall, at the reasonable request of the party, his heirs, executors, administrators or assigns, certify to the surveyor-general's office, whether any, and how much of the lands in the said warrant described, hath not been, or cannot be surveyed, for the reasons aforesaid, or, being surveyed, doth interfere with any prior survey or appropriation; and the surveyor-general, whenever he shall have proof of the same, shall, at the like reasonable request, certify to the receiver-general, the number of acres which shall remain unsatisfied, on any warrant issued after the 1st day of April, in the year 1784.

Ibid. § 2. Party to have

for other lands.

127. Whenever it shall, by the original receipts, or other legal voucher, or by the entries made in his books,() appear to the receiver-general, that any person or credit for purchase- persons have paid into the land-office, any moneys or certificate, for lands granted money in payment to them by virtue of warrants issued after the 1st day of April, in the year 1784, and which they have not obtained, or that they have paid any moneys or certificates over and above what was due to the commonwealth for the lands obtained by virtue of such warrants, he shall carry the said money or balance to the credit of such person or persons, his, her or their heirs, executors, administrators or assigns, in payments already due, or hereafter to become due to the commonwealth, for the purchase of any lands(m) within the same [together with lawful interest for the same], from the time of the original payment to the time of such credit being applied for and made.(n)

6 March 1793 § 2. 3 Sm. 93.

When such balances to be forfeited.

128. From and after the 1st day of January, in the year of our Lord 1795, all and every person and persons, who shall not previously apply for and procure a credit to be entered in the books of the receiver-general, for any such sum and sums of money or balances aforesaid, shall be thenceforth for ever barred and excluded from all claim, right or title thereto, and to every part and parcel thereof, and from any benefit or advantage which could or might have been obtained, by, from or under the said recited act; and all such sum and sums of money, or balances, and the right an delaim thereto, shall thence become and be for ever forfeited and cancelled. 22 Sept. 1794 § 1. 129. No applications(o) shall be received at the land-office, for any lands within this commonwealth, except for such lands whereon a settlement has been or hereafter shall be made, grain (p) raised, and a person or persons residing thereon.(q)

3 Sm. 193.

Land-office closed except to actual settlers.

(i) See act 29 March 1809, § 8, 5 Sm. 47. (k) See act 25 June 1781, 2 Sm. 7; and act 8 January 1791, 3 Sm. 2.

(1) This refers to John Keble's blotters, which were made evidence by act 21 March 1823. Oliphant v. Ferren, 1 W. 58-9. They are, however, but prima facie evidence that the purchase-money was paid by the person to whom it is there credited. Strimpfler v. Roberts, 18 P. S. 283.

(m) Subsequently to the act 22 September 1794, infra 129, 130, such credits could not be applied in payment for a warrant for unimproved land, except where the application for it was prior to the date of that act. Ward v. Armstrong, 3 S. & R. 305. Heath v. Armstrong, 12 P. S. 179. But see infra 130.

(n) The act 6 March 1793, § 1, 3 Sm. 93, repeals so much of this section as authorizes the allowance of interest upon such balances.

(0) That is, for a warrant. McNamara v. Shorb, 2 W. 291. A warrant issued contrary to its provisions, vests no title. Branyan v. Flickinger, 4 S. & R. 501. See Bixler v. Baker, 4 Binn. 213. Lane v. Reynold, 2 S. & R. 65. Ward v. Armstrong, 3 Ibid. 305. Moyer v. Gross, 2 P. & W. 171. Campbell v. Galbreath, 1 W.