
    Lessee of William Waddel v. Thomas Gray.
    This was an ejectment for 302 acres and 18 perches of land in Plumb township, Allegheny county, on the demise of Robert Waddel, of 2d July, 1791, to hold from 1st July, 1791, for ten years.
    The plaintiff shewed a warrant dated 30th August, 1785, for 300 acres of land, on the waters of Thompson’s run, joining lands of Bernard Dougherty and others, interest commencing from 4th March, 1772; with a survey, made 7th July, 1787, on this warrant and an order of the Board of Property of 5th March, 1787, containing 302 acres and 18 perches; and a patent, on this warrant and survey, dated 24th March, 1792.
    He then proved, that Joseph Creswell, having a general authority from David Rogers to make or buy improvements for him, bought, for a trifle, from James 
      
      Myers, a small improvement, to wit, some trees deadened, got a survey made on it including this improvement and the land in dispute, hired a man to make rails, had about nine hundred made, some more trees deadened, and a cabbin raised to the joists. This was between the years 1772 and 1774. None ever lived on the land, till Isaac West came on it, claiming for himself. This was before, or in, the year 1774. He rooted the cabbin, and lived in it; built a house twenty-seven feet long, made a large improvement of upwards of twenty acres of cleared land, and lived on the land till 1778, when he was killed by the Indians, the house burnt, and the neighbourhood desolated.
    The defendant shewed a location, No. 3396, in the name of Eleazer Myers, dated 13th June, 1769, for 300 acres of land, joining lands of Jacob Bousman, about a mile and a half from Forbes's breast-works, on the waters of Thompson’s run, on the right hand branch about four miles and a half from the mouth; with a survey made on this location, 3d December, 1784, containing 352½ acres and allowance, on a branch of Thompson's run in Pitt township, Westmoreland county. Before this survey, E. Myers had, on this location perhaps, though that did not certainly appear, made a survey of another tract of land, about half a mile or three quarters of a mile distant from this, and fold it to Bernard Dougherty; but one Beattie having a prior location for that, E. Myers gave up his pretentions, that Beattie might obtain his patent, and afterwards, on 3d December, 1784, made the above survey of the land in question, which answered exactly, and better than Beattie’s land, to the description of this location.
    The defendant also proved, that, in the fall of 1772, Robert Thompson made an improvement on the land in question, on Thompson's run, deadened trees, made brush heaps, marked a tree with his name, and afterwards, and perhaps before West was killed, fold this improvement to E. Myers for 15l. Creswell’s improvement was about a quarter of a mile distant, and both his and Thompson’s were within both surveys made on Waddel’s warrant and Myers's location. In spring, 1785, E. Myers put a tenant on the land, who sitted up an old uncovered cabbin, and went into it, under a lease for four years. The old improvement was then all grown up. None had lived on it from the time of West’s death. This tenant cleared and planted nine acres that spring, twelve acres the spring following, and nine the spring after that. E. Myers occasionally, from time to time, claimed title, through his location, to the land in West’s possession. Isaac Lane, who came to this country with West in 1772, made an improvement a quarter of a mile distant from West’s, and, together with West’s, within the survey afterwards made by Creswell. In the fall of 1772, or spring of 1773, Rogers and Waddle came to Lane, and he bought Rogers’s claim for 10l. E. Myers was present, and said he would have that or the adjoining tract by his location, but would let West live there all his days.
   President

recapitulated the title and testimony on both sides, and made three questions.

1. Had E. Myers a right to lay his location on any vacant land, supposing he had, before, laid it on Beattie’s land, which is not the land in dispute?

2. On 3d December, 1784, was there any thing to hinder E. Myers, from laying his location on the land in dispute?

3. Will the plaintiff's patent, as signifying the will of the proprietor, conclude you from examining the adverse titles, as they stood on 3d December, 1784?

1. The location applies exactly to this land, and would not apply to well to any other. E. Myers therefore mistook in his first survey, and got nothing by it; for an elder title intervened. Was he therefore bound by this mistaken election, or might he correct his mistake, and come upon the land which really answers the description in his location? I think he was not bound by his first election, and he might make a new survey on land answering the description in his location, unless, in the mean time, an adverse title, either positive or equitable, had, under the confidence of his first election, attached itself to the land described in the location, afterward reported to, and now disputed.

But it is objected, that Eleazer Myers had sold to Dougherty, and could not then change the application of the location. I answer, this lies not in the mouth of Waddel.

On 2d. December 1784, Waddel had no positive strict legal title. Had be then such an equitable title, as was sufficient to exclude the location from this land? I think not. His only title was a cabbin unfinished, and rails cut; a mere improvement (as to distinguish it from a settlement I will call it) made on a general land-jobbing scheme, and never pursued by the maker up to a real settlement. The title of Francis Waddel (if it were vested in Robert) was but precisely what the title of Rogers was. The only actual settlement was made by West. But why should Waddel derive any benefit from the labour of West, rather than the tenant in possession? Surely the tenant in possession has of the two the best right to claim under this labour of West's.

3. The proprietor or Commonwealth, or any other owner of property may give it to whom they please, provided they have not tied up their hands, by a prior engagement, either positive or equitable. But if they have, courts of justice will not suffer them to break through their prior engagement, but will hold them to it. On 3d December, 1784, they were bound to E. Myers. Therefore the case is to be confidered as of that date: and if E. Myers had a good title then, he has it yet. He had a good title then.

The jury being at the bar, ready to give a verdict, the plaintiff suffered a nonsuit.  