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SUPREME COURT US.

FEBRUARY TERM, 1805.

HUIDEKOPER'S LESSEE v. DOUGLASS.(a)

nia, of 3d

THIS was a case certified from the circuit court of Under the act the United States, for the district of Pennsylvania, in of Pennsylva which the opinions of the judges of that court were opposed.

April, 1792,

for the sale of the vacant

warrant of a

The action was an ejectment to try the title of the lands, &c. the "Holland Company" to a very large tract of land in grantee, by Pennsylvania, lying north and west of the rivers Ohio tract of land, and Alleghany, and Conewango creek, purchased of that lying north state under the act of assembly of the 3d of April, 1792, the rivers 0which act is as follows, viz.

and west of

hio and Aileghany, and Co. newango

An act for the sale of the vacant lands within this Com- creek, who

monwealth.

by force of arms of the enemies of the

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Whereas the most valuable lands within this com- United States, monwealth, included within the purchase made from the was prevented from settling native Indians in the year one thousand seven hundred and and improving sixty-eight, have been taken up, located, and appropriated the said land *for the use of divers purchasers, at prices heretofore established by law, and those which remain unsold and for the space unsettled, being inferior in quality or situation, cannot from the date be sold at the same prices: And whereas the prices fixed of his warrant, by law for other lands belonging to the commonwealth but during that

of two years

time persisted in his endeavours to make

(a) Present, Marshall, Ch. J. Cushing, Paterson, Washington and such settleJohnson, Justices.

ment and im. provement, is excused from

making such actual settlement as is described in the ninth section of the act, and the warrant vests in such grantee a fee-simple.

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Huidekoper's are found to be so high as to discourage actual settlers from purchasing.and improving the same:

Lessee

V.

Douglass.

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Section I. Be it therefore enacted by the senate and house of representatives of the commonwealth of Pennsylvania, in general assembly met, and it is hereby enacted by the authority of the same, That from and after the passing of this act, the price of all the vacant lands within the limits of the purchase made of the Indians in the year one thousand seven hundred and sixty-eight, and all preceding purchases, excepting always such lands as have been previously settled upon or improved, shall be reduced to the sum of fifty shillings for every hundred acres; and the price of vacant lands within the limits of the purchase made of the Indians, in the year one thousand seven hundred and eighty-four, and lying east of Alleghany river and Conewango creek, shall be reduced to the sum of five pounds for every hundred acres thereof; and the same shall and may be granted to any person or persons applying for the same at the price aforesaid, in the manner and form accustomed under the laws heretofore enacted and now in force.

Sec. II. And be it further enacted by the authority aforesaid, That from and after the passing of this act, all other lands belonging to this commonwealth, and within the jurisdiction thereof, and laying north and west of the rivers Ohio and Alleghany, and Conewango creek, excepting such parts thereof as heretofore have been, or hereafter shall be, appropriated to any public or charitable use, shall be, and are hereby, offered for sale to persons who will cultivate, improve and settle the same, or cause the same to be cultivated, improved and settled, at and for the price of seven pounds ten shillings for every hundred acres thereof, with an allowance of six per centum for roads and highways, to be located, surveyed and secured to such purchasers in the manner hereinafter mentioned.

*Sec. III. And be it further enacted by the authority aforesaid, That upon the application of any person who may have settled and improved, or is desirous to settle and improve, a plantation within the limits aforesaid, to the secretary of the land-office, which application shall contain a particular description of the lands applied for, there shall be granted to him a warrant for any quantity of land within the said limits, not exceeding four hun

V.

dred acres, requiring the surveyor-general to cause the Haidekoper's same to be surveyed for the use of the grantee, his Lessee heirs and assigns for ever, and make return thereof to Douglass. the surveyor-general's office, within the term of six months next following, the grantee paying the purchasemoney, and all the usual fees of the land-office.

Sec. IV. And be it further enacted by the authority aforesaid, That the surveyor-general shall, with the approbation of the governor, divide the lands thus offered for sale into proper and convenient districts, in such manner as he may think expedient, so that the boundaries of each district, either natural or artificial, may be known, and appoint one deputy surveyor for each district, who shall give bond and security, as is customary with other deputy surveyors in this commonwealth, and shall reside within, or as near as possible, to his respective district; and every such deputy surveyor shall, within sixty days next after his appointment, certify to the surveyor-general, the county, township and place, where such deputy surveyor shall keep his office open, for the purpose of receiving warrants, in order that all persons who may apply for lands as aforesaid, may be duly informed thereof; and every deputy surveyor, who shall receive any such warrant, shall make fair and clear entries thereof in a book, to be provided by him for that purpose, distinguishing therein the name of the person therein mentioned, the quantity of land, date thereof, and the day on which such deputy surveyor shall receive the same, which book shall be open at all seasonable hours to every applicant, who shall be entitled to copies of any entries therein, to be certified as such, and signed by the deputy surveyor, the party paying one quarter of a dollar therefor.

*Sec. V. And be it further enacted by the authority aforesaid, That the deputy surveyor shall, at the reasonable request and proper cost and charges of the respective grantees, in such warrants named, proceed to survey the lands in such warrants described, as nearly as may be, according to the respective priorities of their war rants; provided, that they shall not, by virtue of any warrant, survey any tract of land, that may have been actually settled and improved prior to the date of the entry of such warrant with the deputy surveyor of the

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Lessee

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Douglass.

Huidekoper's district, except for the owner of such settlement and improvement; and having perfected such surveys, shall enter the same in a book, to be kept by the deputy surveyor, and to be called the survey book; and the same book shall remain in his office, liable to be inspected by any person whatsoever, who shall demand to see the same, upon the payment of eleven pence for every search; and the deputy surveyor shall cause copies of any such survey to be made out, and delivered to any person, upon the payment of one quarter of a dollar for each copy:

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Sec. VI. And be it further enacted by the authority aforesaid, That in making any survey by any deputy surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy surveyor without his proper district shall be void and of non effect; and the surveyor-general and his deputies, are hereby severally directed and enjoined to survey, or cause to be surveyed, the full amount of land contained and mentioned in any warrant, in one entire tract, if the same can be found, in such manner and form, as that such tract shall not contain in front on any navigable river or lake, more than one half of the length or depth of such tract, and to conform the lines of every survey in such manner as to form the figure or plot thereof, as nearly as circumstances will admit, to an oblong, whose length shall not be greater than twice the breadth thereof; and in case any such survey should be found to contain a greater quantity of land, than is mentioned in the warrant on which it shall be made, so that such excess be not more than one tenth of the number of acres mentioned in such warrant, besides the usual allowance for roads and highways, the return thereof shall, nevertheless, be admitted, under the warrant, provided the party procuring such return to be made, shall forthwith pay to the receiver-general of the landoffice, the price or value of such excess or overplus land, at the same rate at which he paid for the land mentioned in the warrant.

Sec. VII. And be it further enacted by the authority aforesaid, That every deputy surveyor to be appointed by virtue of this act, shall, within the month of February in the next year, make and return into the office of the surveyor-general, plots of every survey

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which he shall have made in pursuance of any warrant, Huidekoper's connected together in one general draft, so far as they may be contiguous to each other, with the courses and distances of each line, the quantity of land contained in each survey, and the name of the person for whom the same was surveyed; and every succeeding year he shall make a like return of the surveys made in the year preceding.

Sec. VIII. And be it further enacted by the authority aforesaid, That the deputy surveyor of the proper district shall, upon the application of any person who has made an actual settlement and improvement on lands, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, and, upon such person paying the legal fees, survey and mark out the lines of the tract of land to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement: Provided, That he shall not survey more than four hundred acres for such person, and shall, in making such survey, conform himself to all the other regulations by this act prescribed.

Sec. IX. And be it further enacted by the authority aforesaid, That no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Alleghany, and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has, prior to the date of such warrant, made, or caused to be made, or shall, within the space of two years next after the date of the same, make, or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating, at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and residing, or causing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original. warrants, and that actual settlements and residence have not been made in pursuance thereof, and so often as defaults shall be made, for the time and in the man

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