ib. 96 Schuylkill rail roads completed 240 Table of the state of manufactures in Philadel. ib. ib. 32 the same at Pittsburg in 1815 and 1819 127 showing loss of heat by different apparatus 189 of law suits in the southern district of the 239 274 241 general statement of the return of law- 223 suits made by prothonotaries of each co. ib. 77,90,110,123,143,157 taxes in each ward and township in city and county of Philadelphia and asses- 230 264 48,64 of births and deaths in the German Lu- theran congregation from 1774101810 373 352 375 153 taxables in each county in 1814, 1821 105,113,299 and 1829 also number of deaf and dumb and slaves 381 394 406 12, 13 127 13 349 375 390 Do 1814, 1821 and 1829 381 405 15 406 96 11 580 Thompson Charles West verses for Penn society 298 315 48, 64,80 255 300 207 14 U & V 15 251,358 report 358 15 University of Pennsylvania 75 86 foundation stone laid ib. 177 ib. ib. ib. inscription on foundation stone of the old 175 ib. report of trustees on the state of 186 expenses at compared with other in- stitutions 347 128 175 ib. growth of on the Allegheny mountain 302 314 W 315 Washington, Judge, charge on Pittsburg case 225 373 248 death of 365 ib. General, letters from 51,116,110, 119,129,130,132,216,231,281,309 Wayne, Gen. Anthony, biographical memoir of, let- 25,33,34,51,64,116,129,158,198, 215,230,279,307,349,365 63 vote of thanks and medal from Congress 67 47, 282 68 64 336 85 ib 80 175 174 80 198 different bank notes in 1815 & 1820 ib. Wolf, Gov., declines being escorted to Harrisburg 345 Y 123 166 early frost at 176 Do. remarkable squash 176 large beet, 336,575 Do, county, crops in 32 168 255 ters, &c. REGISTER OF PENNSYLVANIA. PENNSYLVANIA. DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE. EDITED BY SAMUEL HAZARD. VOL. IV.-NO. 1. PHILADELPHIA, JULY 4, 1829. NO. 79. mon terms. LAND TITLES. of settlement of the possession.” An improvement right (From the Journal of the Senate of Pennsyla.) is clearly defined to be not only the land under fence, but the contiguous woodland; an improvement right Thursday, March 21, 1822. appears to have been well understood at this period by Mr. Conyngham, from the committee to whom was the land office department. referred on the 6th instant a resolution relative to the Let us take this occasion to instance, in 1755, July improvement rights of actual settlers, and also to the 10th, when the lottery principle was introduced, decla. act relative to the limitation of actions, made report, ring that such persons who are settled on the lands, which was read as follows, to wit: without warrants for the same, may have liberty to lay The land titles of Pennsylvania are very intricate, and their rights on the land where they are so seated. We it is only by an inspection of the laws relating to prop. will now refer to several cases on record, to shew the erty, and decisions of the courts arising from conflicting opinions of the court, as to improvements and settler's claims and the construction of the laws relating thereto, rights. that a knowledge of them can be derived. The pro- Patrick Campbell, In this case the prietor of Pennsylvania was ever desirous of promoting June, 1774. court said, “Did the emigration and the cultivation of the soil, and the legis. Benjamin Kidd, S dispute concern im. lature of Pennsylvania, actuated by a fair and liberal proved lands only, the plaintiff should recover possespolicy, passed such acts as would tend to promote the sion. The encouragement given by the proprietors to improvement of the country, by encouraging its settle improvements, have clearly evinced their assent to this ment. The history of land titles is to be obtained from usage, and is such a usage as amounts to an implied an examination of ihe laws and records, and vague and contract on the part of ihe proprietors, that they will unsatisfactory is the information thus afforded. It is a granı the lands to such persons on the usual and comlabyrinth, the intricacies of which the decisions of our It is certain, however, that a right to im. courts unfortunately have not diminished; and so early proved lands will not carry an indefinite claim to adjaas 1755, did governor Morris declare in his message, that cent unimproved lands. Iliough the granting lands to "the management of the land office is pretty much a improvers be highly agreeable to the principles of rea. mystery." son and natural justice, yet in strict law, such improved That the proprietor was desirous of aiding the settle- lands until an office right be obtained, must be consid. ment of the country, will be evinced by an examination ered as vacant." of the warrant system. In 1720, warrants were thus Chief Justice M'Kean has declared, that the proprie. drawn; "Whereas in pursuance of an agreement, made tors gave encouragement to improvements, and that by us five years ago, to settle and improve certain lands, they did grant Jands to such persons who made improveyou are required to survey,” &c. No trace of the arti- ments on the usual and common terms. By an examicle of agreement can be found, but sufficient evidence nation of the minute books of the board of property, remains to shew the desire of the proprietor to procure about the date of 1765, a person holding an improve. the settlement of the state. It appears from a careful ment and residing thereon was entitled to the woodland examination of the records, that at a very early period, adjoining, provided it did not exceed four hundred persons established themselves on land, unauthorised acres, and was vacant at the time the improvement was by the proprietors, and made improvements thereon, made. and the proprietor and his agents not disturbing them in The committee cannot concur with the Chief Justice, their possession, indicate an implied consent. Can a that unul an office right be obtained such improved beiter or a more just reason be assigned for the origin lands must be considered vacanı. of these improvement rights, than the acquiescence of It cannot be considered vacant, in the opinion of your the proprietor? Certainly not: for if it was contrary to committee; because the moment a settlement or resithe wish of the proprietor, why did he encourage the dence is made, the vacancy ceases to exist; for the own. practice er of such improvements is entitled to a warrant for That the proprietaries of Pennsylvania gave a pre- four hundred acres adjoining and including such imference to settlement and improvement, is easily shown provement as was vacant at the time such improvement by the establishment of the application system, which was made, and is also compelled to pay tax not only for benefitted the settler; inasmuch as on an application, no the same within fence, but the contiguous woodland. money was to be paid--whereas on a warrant, the prac- 27th November, 1779. The estates of the proprietatice was different, and on the land office being opened ries were vested in Pennsylvania—early adventurers es. on the 7th of June, 1765, for the east side of the Sus- tablished themselves between the mouth of Lycoming quehanna, on the new plan, it was resolved, that the and Pine Creek-their rules and regulations, relative secretary give warrants to such persons as have built to the right of possession and boundaries, were after. on and resided on the lands they apply for, and have a wards recognized by law; and their decisions were rejust claim to an improvement bringing a certificate of a ceived in evidence and confirmed by judgments of the neighboring magistrate or other satisfactory proof of the courts. The acts of December, 1784, originated from nature of the improvement and first settling thereof, the fair play settlement. when the interest and quit rent is to commence. April 8th, 1785, section nine examine: August 10th, 1765, in the minute book, there is this “All surveys to be returned on any warrant issued af. temarkable entry: "Whereas a piece of land applied for ter the passing of this act, were to be made by actually joins a settled habitation, the secretary is directed to going on the ground and measuring the land, and mark. grant a warrant, with interest and quit rent, from time ling the lines to be returned on such warrants, after the Vol. IV. 1 warrant authorizing such survey should have come to the hands of the deputy surveyor to whom it was directed." The Supreme Court declared, in the case of Wright's lessee, vs. Wells-"But supposing it extended to all surveys on warrants issued after the passing of this act, though this case may fall within the words, it is evident that it is not within the spirit and intention of the act;" and again "suppose a surveyor receives a warrant and the land to be surveyed on it is bounded on three sides by the lines of other tracts, which he has surveyed before, it is not contended that he is obliged to run over these lines again; because it would be useless trouble, these lines having been run and marked by legal authority before-and yet he does not comply with the words of the act, which requires him to run the lines and mark them; but only with the spirit." Brackenridge then says, "If the survey is not made after the warrant came to the hands of the deputy surveyor, it is absolutely void; for that part of the section is positive and directory." The decision in the case of Wood vs. Ingersoll, is still more objectionable: "Although the directing part of the ninth section is not complied with, yet the survey | is sufficient and it is of consequence, that there should be no misunderstanding on this point; or the titles of a vast number of persons, who have taken up land from the commonwealth and paid for them, would be shaken by a contrary opinion." The ninth section of the act of April 8th, 1785. This section has not been construed by the words of the section, nor by its meaning, spirit and intention. We agree with Judge Brackenridge, that if the survey is not made after the warrant comes into the hands of the deputy surveyor, such survey must be void, because it was not made according to positive law; and we can only suppose, that the majority of the Supreme Court were influenced by a desire to protect the landbolder to the injury and prejudice of the settler. For in the following opinion, in the case of Hubley vs. Chew, the court expressly declare: "We cannot construe a law differently from the plain clear words of it, under any ideas of convenience or equity." Hence, then, it appears, that the court in the former opinion, were actuated by motives unworthy of their high station; and that they did construe the ninth section not from the plain, clear words of it, but from their ideas of convenience or equity. Suppose a person settled and made an improvement on a piece of land containing about three hundred acres, the limits of which were surveys of adjoining tracts, well known and marked by the deputy surveyor, by actually going on the ground and marking them in pursuance of a warrant dated in 1775. The tract on which the settler resided was claimed by a person who held a patent from the state, which patent issued in pursuance of a warrant or survey of the date of 1787; but the survey then returned by the deputy surveyor, was not made on the ground and marking the line of the tract after the warrant came into the hands of the deputy surveyor, which duties are absolutely required to be done and performed by the ninth section of the act of April 8th, 1787, the deputy surveyor making his return from the adjoining surveys, the drafts of which were in his possessien. An ejectment is brought against the person in possession, and he is, although he was settled on vacant land, evicted from such possession, by the construction of the law by the Supreme Court. Although the surveyor who returned the survey, as made on the ground and marked, violated the oath of his office and the title was fraudulently obtained. The unfortunate man who settled and improved the land under the faith and protection of the law of the commonwealth, who violated no law, who committed no wrong; who on the contrary, lent his aid to improve the state, is thus compelled, by a decision of the Supreme Court, to abandon the fruits of his industry or improvement to which be was attached because it was affected by his own labor, contrary to every principle of justice, equity and sound policy. In the opinion of your committee, any title derived from an office grant, which was obtained without an actual survey on the ground, by the deputy surveyor, or a person legally authorized to make such survey, and marked trees corresponding to the date of the survey, is nothing more than a blank sheet of paper; for such title is contrary to law and can give no title to the holder for such land, so claimed, must in every view in which it can be taken, be considered as vacant. If the legislature were to connive at a practice like this, your surveys hereafter would be made in the closet, and would lead to such consequences which would be fatal to the settler, disreputable to the legislature, and injurious to the character of your state. If we pass laws, we must support them; and if the Judges will not construe the laws agreeably to their words and meaning, the legislature must remind them that they are not omnipotent. Hubley's lessee vs. Chew:-The Court, "We disclaim all legislative powers; but it will not be denied, that we possess the right of putting such construction on the acts of the legislature as appears to us best to accord with their intention, either express or implied.We cannot construe a law differently from the plain, clear words of it, under any ideas of convenience or equity."-(How can this opinion be reconciled with that given in the case of Wright's lessee rs. Wells?)— The court have declared, in several cases, that the default of the deputy surveyor, in not returning the survey to the proper office, shall not be imputed to the person in whose favor the survey has been made-the latter depends on the actual lines on the ground, which, in fact, constitute a survey-the field notes, drafts, or return are merely evidences of it. In the case of Quinn's lessee vs. Nichols and others, the Court thus says: "This act of March 26th, 1785, is an excellent safeguard to landed possessions, and highly beneficial to the community; and should be construed liberally"—and by their very liberal construction of this law, the settler has too frequently suffered. What shall be deemed a settlement is stated in the act of December, 1786. By a settlement, shall be understood, an actual personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, or by going into the military service of the country, during the war-but that no such settler shall or may bave the pre-emption of any tract exceeding four hundred acres, by reason of any such settlement. The evident intention and meaning of the legislature, as it relates to possession or improvement, is clearly shewn and evinced by the expression contained in this act, by the words themselves. The expression from time to time is clearly in favour of the settler: and the legislature have thus declared that they consider that settlers have a right to any land they may think proper to claim by virtue of their settlement, provided it does not exceed four hundred acres; that is, with the improvement and woodland adjoining. Cluggage and others against the lessee of Thomas Duncan. Oct. 3d, 1814. It was given in evidence, that Lawrence Peterson improved in 1763, a tract of land, cleared and fenced in between three and five acres, on which he built a cabin and raised corn; that Jacob Hare made an improvement adjoining Lawrence; and some time after, when Armstrong was in that county, he agreed to take out locations for each of the tracts and to have them surveyed for them-at this time, Hare had raised corn and cleared and fenced two or three acres. Hare and Peterson built their cabins for the purpose of holding the land, but were driven off by the Indians, about a year after. The defendants also offered a variety of evidence, to shew that they had been in the actual possession of a part of the land in question for more than twenty-one years, previous to the commencement of the suit. Lessee of Thomas Duncan claimed under an application of November 4th, 1766, No. 1812-by Lawrence Peterson, 4th January 1767; a survey was made under this location, by Tea, the deputy Surveyor, but it was never returned. It was proved that Armstrong had paid the surveying fees-the land was sold under a judgment as Armstrong's and purchased in by T. Dun can. 4th of August, 1801. The board of property granted an order to re-survey for Thomas Duncan. A survey was then made and duly returned Judge Walker charged as follows: "The facts of superintending a survey and paying the fees of surveying have always been considered prima facia evidence of ownership." Again-"That as to all the land in possession of Francis Cluggage, for twenty-one years previous to this suit, the plaintiff was barred by the act of limitation-all the lands actually within the fence of Francis Cluggage or the defendants, will be protected by twenty-one years of adverse continued possession, prior to the institution of this suit. We are of opinion that the sale does vest the title in Duncan." Chief Justice Tilghman, in his opinion thus says-"I agree on this point with the court of Common Pleas "That as to all the land which was in the actual possession of Francis Cluggage for twenty-one years previously to the institution of this suit, the plaintiff was barred by the statute of limitation. Cluggage had no survey— therefore there was nothing to which his possession attached but his inclosure"-the judgment was affirmed. Your Committee cannot suffer this case to pass unnoticed and without expressing their disapprobation of the opinion of the Court of Common Pleas, as well as that of the Supreme Court. The opinion being contrary to reason, policy, law, and the usage of the land-office. Your Committee are decidedly of opinion, that the improvement of Francis Cluggage gave him a legal right to all the land included in the re-survey of Thomas Duncan; because, by virtue of an improvement right, the owner of such right could hold four hundred acres by virtue of a warrant covering his improvement and the adjacent woodland, provided that such land was vacant at the time such improvement was made: and if Francis Cluggage was entitled to the improvement under fence, he was also entitled to all the rights, privileges and usages which such improvement right could confer; and by virtue of such right, Francis Cluggage could, at any time, take out a warrant for the whole of the land, included in the survey and could hold such land agreeably not only to the several land laws, but to the custom and usages of the land office. 3 and if Kyle has no title by his own improvement, he can derive none from his purchase of Newkirk. Question to the court.-Whether two verdicts and judgment, in favour of the defendants or those under whom they claim, and seventeen years acquiescence by the plaintiff, are not a bar to this ejectment. "Nothing less than twenty-one years adverse possession is a bar by our act of limitation." Kyle's improvement was made many years prior to White's survey; and because Kyle or George Gabriel, under whose improvement Kyle claimed, did not apply for a warrant in pursuance of a promise made by Secretary Peters, to Gabriel; and as White had obtained a warrant previously to Kyle, and had the lands surveyed in pursuance of that warrant, yet the court decided that the judgment of the court of common pleas be reversed. See Binney's Reports, volume 1st, page 248. January 2d 1808, Kyle and White claim under improvements neither of them can derive title from the date of their improvements, because they were made against law on lands not purchased of the Indians. White ought to have the preference; because he has the oldest warrant and survey." To put this case in the proper point of view, we offer the following extract from Brackenridge-That the accommodation of settlers and the improvement of the country, would scem to have been the early policy of the proprietaries, will appear in the usage of granting lands in small quantities. White had two warrants for one hundred acres each, and there would be good reason to indulge him in a survey of three hundred acres, which then or since had become usual; but here was five hundred and sixty two and a half acres surveyed-that is, two hundred and sixty two and a half beyond what the warrant called for. The proprietary agent in 1765, and the proprietary board of property in 1768, restricted White in the quantity which would leave two hundred and twentyfive acres to Kyle. Kyle's claim was certainly the ground of this restriction-a survey of three hundred on each one hundred acres warrant, would be going on the ground of two improvements, which was the case here." White and others against Kyle's lessee. Remarks. The Judges of the Supreme Court, altho' they admit the encouragement given to actual settlers, yet the court are unwilling to give a preference to an improvement when put in competition with an improvement covered by a warrant or survey; although that improvement was the oldest, yet unprotected by a warrant. Kyle and White claimed by improvements and by promises of warrants, from Secretary Peters. The first promise was made to Kyle; consequently Kyle was entitled to at least three hundred acres including his settlement by virtue of such promise. White by his two warrants could only hold agreeably to the usages of the land office, not more than three hunWe are decidedly of opinion, that the possession at- dred acres; as each warrant called for only one hundred tached not only to his enclosure, but to the Woodland acres; and we insert the opinion of judge Brackenridge, adjoining, which Cluggage claimed by his improvement.in which we heartily concur, because that opinion was The next case to which we would direct your atten- founded on the practice of the land office, and a contion is, White and others against Kyle's lessee-June trary decision would result in the most mischievous con10th, 1815, It was given in evidence that Kyle made sequences, as tending to destroy and render insecure an improvement on the lands previous to the purchase the rights of the settler, and to give to the warrant holdfrom the Indians, but it was declared by the court, that er a larger amount of land not called for by the warrant it would not give any equity, or vest any title. Ques- and to which he would not be legally entitled. tion-whether James Kyle's taking a warrant on the 3d of June, 1762, adjoining lands of William White, without calling for any improvement, was not a relinquishment of an equity founded on an improvement on that land? Answer by the court-James Kyle's taking a warrant without calling for an improvement, is not conclusive evidence that he had abandoned all claim under his improvement. Question. Whether the sale by Henry Newkirk to Kyle in April 1754, of the lands not then purchased from the Indians, can be of any avail in law or equity. By the court. "The purchase of Newkirk, is of no avail; M'Coy vs. The Trustees of Dickinson College, 1818, June. The Trustees of Dickinson College, the plaintiffs, claimed under an application, survey and return of survey,but no patent. When the plaintiffs had finished their evidence, the defendant offered to shew possession in himself adverse to the plaintiffs, from the year 1787 to the commencement of the suit. This evidence was rejected by the court. Whether the evidence was legal was now the question. Opinion of Tilghman. In the case before us, the survey was returned the 28th of August, 1772; and from that time the estate was us. subject to the act of limitation. I am very clear there one warrant, or not, provided he gets in the whole on fore that the defendant's evidence ought to have been more than he is entitled to, and punctually pays for received. At the same time, I desire to be distinctly what he gets. understood that I give no opinion, nor have formed any The court by this opinion have declared that a settler opinion, beyond the point immediately decided. The is entitled to any land he may think proper, provided defendant's' evidence ought to be received; but what it does not exceed four hundred acres by his improvewill be the consequence of possession taken without ment. title as to the extent of possession, or whether such Miller, possession will in law be extended beyond the actual Opinion of Judge Duncan, June 1821, inclosures of the occupant, is a question not now before John Shaw, at Sunbury. The consequence of laying down general princi. ple on the act of limitation, are so important that I hold This case, and several others depending on the act of it my duty to be extremely cautious, of intimating opin- limitation, have laid over to give the court an opportuions on points out of the record. I am of cpinion the nity of confering and giving a construction to the act out judgment should be reversed. of which so many important questions have grown.. I The above opinion has been introduced here for the have been consulted on the title, and will avoid giving purpose of shewing the extreme caution of the supreme any opinion on the merits of the conflicting claims, and court in giving an opinion as to the nature of an improve-confine myself to an abstract question of law, and cons ment right. sider how far this act protects one who entered on a Hall and others vs. Powell, 1818, October, 5th. tract of land duly surveyed, and has resided within the Duncan.--As it respects the operations of the act of lines of the survey, more than twenty-one years, against limitation every decision, every construction on the law, the rightful owner. Had there been a difference of ois most important, for it extends to every part of the pinion between the judges who have just delivered their state, and embraces the rights and possessions of every judgements; I would not consider myself at liberty to man. give an opinion that would turn the scale; but as they When a man claiming by improvement, enters on the agree,& it is very desirable should be considered in a full land of another, and has not his pretensions marked out court, I have yielded to the wishes of the Chief Justice by lines or a survey, he is only protected so far as is and my brother Gibson, in expressing my sentiments, covered by his buildings and improvements, if there While at the bar, I have looked forward to the time is neither survey made nor lines nor boundaries of such when this question would become one of great and see improvement. His possession does not extend beyond rious importance; and had considered it with some care; his actual occupancy by enclosure and exclusive posses- and since with anxious attention. It has been attempt. sion-it is difficult to conceive how the protection by ed to involve it with the right of settlement. This right limitation can extend further and protect possession rests on a solid foundation, not now to be shaken; and is which only exists in the imagination and mind of the to be traced to a very early period of the province. Of improver, and has assumed no visible notorious, corpo- the possession, what ever may have been the moving real, tangible substance. consideration with the proprietors, it is certain they The court wish it to be understood, as not giving any gare a preference to settlers on their unappropriated opinion how far one entering on the land of another, Fands. This usage grew into a right of preemption, rewithout official right, but merely claiming by right of cognized by them and their officers, and was sanctions possession, is protected by limitation beyond his actual ed by many judicial decisions, prior to the revoluinclosures, though he has lines run or a survey made tion. This usage was well understood, and has since and his boundaries ascertained. Judgement must be been supported by positive law; but neither the usage affirmed. nor the law gave any sanction to any entry into the lands Branyon vs. Flickenger, 1818, October 10th. which had before been clisposed of. The lands which Tilghman-Extracted from his opinion in this case to were open to settlement, were vacant, unappropriated show the definition of a settlement: lands. After appropriations, neither the proprietors nor "In order to constitute a settlement there must be a the state had power to sell and dispose of them again, residence on the land with the intention of making it a Where there had been a previous disposition, the settler place of abode and the means of supporting a family. could gain no right of pre-emption. No one could give The Legislature has manifested a great anxiety to have a pre-emption to that which had already been sold.the vacant lands settled; and for that purpose has given ?he man who has a legal survey, has not only acquired a not only a preference but an exclusive preference to right to the possession of all the lands within his survey, such persons as should reside on the land and with their for it is a principle of the common law,that the possession families. There can be no commencement of a legal and the right go together,the owner is never deemed out title, without some act on the land with a view to resi- of possession until another has obtained an adverse posdence and the support of a family; and the first stroke session, when the possession is vacant. Trespass, which of the axe or the furrow of the plough, with these views is a possessory action, will be against a wrong done; it is the commencement of a settlement, which if persev. is the close of him who has the right, as the principle of ered in according to law, will end in a good title. This the common law prevails in all the states of the Union, is the true construction of the law of 32d September, where the question has been agitated. In New York it 1794." has often been decided, that trespass will lie by the We coincide in the opinion of the chief justice, and owner against the intruder into wild and uncultivated have introduced it here in order to show that he is a- lands. 8 Johns, 265—9 Johns, 385–12 Jolins, 1824-15 ware of the desire of the Legislature to have the vacant Johns, 118, and in Massachusetts, proprietaries of Ken. lands of this Commonwealth settled, and that he has elo-drick ys. Crolla survey was held to give the owner such quently alluded to the rise and progres of a settlement possession as would support the action of tresspass, tho? -and we regret that he has so frequently departed he may elect to be disseized, 1 Massachusetts 284, and from as correct a construction of the other land laws. bring his ejectment. Yet the act of entry does not a. mount to a disseizin. And in this state in Brown vs. Porter vs. M'Ilroy, October 5, 1818, Swift 2d Sergeant and Rawle, 439, it was determined that Judge Gibson,-Extract from his opinion. the law cast the possession on the owner of a survey re"The taking a warrant for and having a survey made urned of all the land contained within it. Seizen and posa of a less quantity, than a settler is entitled to, but not session continue in the owner, until he is disseized This is returned, is not conclusive evidence of an intention to a doctrine of law, and faniliar to those acquainted with abandon the part not included. It is immaterial to the its first rudiments. Possession and right are presumstate whether a settler obtains his quantity by more than cd together—the rightful owner, in the presumption of |