
    [Chambersburg,
    November 1, 1824.]
    BARTON and others against GLASGO.
    IN ERROR.
    If the person under whom the defendant claims was living1 on the land in dispute, and holding it by actual settlement, at the time at which the warrant under which the plaintiff derives title was taken out, and the survey made, and this possession was continued, with some intervals, (during which no person was actually on the land,) down to the defendant, it is not error to instruct the jury, that these facts repel any general presumption of abandonment, and that, in the opinion of the court, the evidence does not establish an abandonment of the improvement.
    If the court is not called upon to instrnct the jury on any particular.point, and in its general charge, lays down the general principles of law correctly, the judgment will not be reversed, because a more pertinent charge might have been given. If there are particular circumstances, which exempt the case from the general rule, it is the business of the counsel to ask the court’s opinion of the law on those circumstances.
    If a settler has not marked the extent of his claim on the ground, a person who intends to take up land near him, should request him to mark his lines; and if, without such request, a warrantee proceeds to make his survey, he acts at his own peril; and, in case of a dispute, it must be decided by the opinion of a jury, as to a reasonable location of the settler’s tract; regard being had to shape, soil, water, and other circumstances.
    Writ of error to the Common Pleas of Huntingdon county.
    In the court below, it was an action of ejectment, brought by William, P. C. Barton and others against John Glasgo. The dispute, which was about nine acres of land, was occasioned by an interference of the tracts held by the plaintiffs and the defendant. The plaintiffs claimed under a warrant for four hundred acres to Samuel Scott, the 1st of February, 1794, on which there was a survey of four hundred and thirty-three acres, one hundred and thirty-three perches, made the 24th of May, 1794, and returned the 29th of September, 1795. The defendant claimed under an improvement by John Hess, in the year 1785. Hess conveyed to John Lichty, the 22d of September, 1785, who conveyed to John Hunter, the 20th of September, 1792, who conveyed to John Glasgo, the defendant, the 8th of April, 1795. The defendant took out a warrant for three hundred acres, the 21st of November, 1810, on which a survey of three hundred and twenty-two acres, seventy-five perches, was made, on the 21st of November, 1810, and a patent issued to the defendant, the 20th of December, 1815. No step was taken towards ascertaining the bounds of the improvement under which the defendant derived his title, till about the year 1801; when an inofficial survey was made, and the lines and boundaries marked. Some alteration was made in these boundaries, by the official survey on the defendant’s warrant, in 1810, but both these surveys included the land in dispute. The plaintiffs gave evidence, to prove that the defendant’s official survey did, in fact, contain three hundred and eig'hty-one acres, one hundred and forty-nine perches. The opinion of the court was not asked on any point of law, by either party; but when the following charge had been delivered by the president, it was excepted to by the counsel for the plaintiffs:
    “ The plaintiff claims under warrant and survey, the defendant under an ancient settlement. If the land was vacant, when the plaintiffs located their warrant, by actual survey upon the ground, their title would prevail. If actually appropriated, by a resident settlement upon the ground, then the plaintiffs’ warrant and survey would not prevail against it.
    “The plaintiffs contend, the land was vacant at the date of their warrant and survey: 1. Because they say the settlement and improvement, under which the defendant claims, had been abandoned; and, secondly, Because they say that the said improvement, even if not abandoned, never did include the spot of land in dispute.
    
      “ If Hunter was actually on the land in dispute, at the date of the plaintiffs’ warrant and survey, holding it by actual settlement and improvement, that would repel the general presumption of abandonment. If the survey was void in the beginning, it could not become valid by any subsequent act.
    “ John Hess was in possession between 1786 and 1788. We do not know how long he continued. Hess sold to John Lichty, on the 22d of September, 1788. We know of no possession in him. Lichty sold to John Hunter, in September, 1792. He continued in possession, as he states, from that period, or very shortly after it, till the fall of 1794; consequently, he was in possession at the ( date, both of the plaintiffs’ warrant and survey. He sold to the defendant, on the 8th of April, 1795. Glasgo leased it to Hop-Mns, in 1797, for three years. The survey round the defendant’s claim, by Steel, is supposed to have been made about the year 1801. In the mean time, the defendant worked the land by his sons, he living three miles distant; and about 1806 or 1807, William Glasgo built his new house. The defendant afterwards moved on, and has continued there ever since. The evidence does not, in our opinion, establish a general abandonment.
    “The principal question in the cause, as the evidence appears to the court, is, Whether the particular spot in controversy was so situated, in relation to the place of residence and the improvement made, as to indicate, by a reasonable presumption, that it constituted part of it? The settler had a right to include it. He had a right, in any way, to demonstrate his intention to do so.
    “It is a point to be decided by the juiy, whether it was intended as a part or not, by its distance or its proximity, the nature of the soil, the waters, and any other considerations in relation to its position. If these circumstances indicated the particular spot in dispute, as a part of the general tract of the settler, so as to give reasonable notice of the fact to the subsequent warrantee, it would btave been fraudulent in him to have, under such circumstances, included it. On the other hand, if it was so remote, from distance and local situation, as to furnish no indication of the settler’s intention to include it, then the warrantee would have been justifiable in appropriating it to himself by survey, unless he had express notice of the settler’s intention to include it. A case may be so situated, as to render it extremely difficult for a jury to decide; but when called on, they must do so in the mode best calculated to protect the rights of the parties. The evidence, and the decision of facts, are referred to the jury — we have stated the law; it is for you, conformably to the one and the other, to find your verdict.
    
      “ The act of the Sth of Jlpril, 1785, was intended to prohibit inofficial and unauthorized surveys from being made, and persons from marking unauthorized lines upon the ground, by which settlers and others might be deterred from appropriating such land to themselves. Therefore it is, that warrants cannot be taken out and applied to such previous surveys, so as to give any title.
    “ In the case before us, the warrant is dated the 1st of February, 1794; the survey, not until the 24th of May, 1794; a receipt for surveying; fees, and incidental expenses, the 19th of April, 1794. The presumption is, that the warrant issued tiie day it bears date, and that the survey was made the day it purports to have been made. The fact of the certificate, for the payment of the purchase money, bearing date after the date of the survey, does not in law defeat the plaintiffs’ right to recover. It is well accounted for, by supposing the money paid, was credited in the usual way to the nominal warrantee, and this was afterwards procured by William Barton to supply the place of a deed poll.”
    
      Shippen, for the plaintiffs in error. .
    
      Mullen, for the defendant in error.
   The opinion of the court was delivered by

TilghmAN, C. J.

The errors which have been assigned, may be reduced to three heads:—

1. The court instructed the jury, that if Hunter, under whom the defendant claims, was aetualty living on the land at the date of the plaintiffs’ warrant and survey, holding by actual settlement, it would repel any general presumption of abandonment, and that, in their opinion, the evidence did not establish a general abandonment of the defendant’s improvement. This is said to be an erroneous direction, but to me it appears clearly right. The defendant proved an actual possession and settlement by John Hess, continued, with some intervals, (during which no person was actually on the land,) down to himself; and, in particular, he proved that Hunter, from whom he purchased, was living on the land at the very time the warrant of the plaintiffs was taken out, and their survey made. How was it possible, then, that there could be any legal presumption of an abandonment of the defendant’s improve*ment ? It would have been a presumption in the face of fact and truth. If the counsel had to ask the court’s opinion, whether the facts sworn to by the defendant’s witnesses, if believed by the jury, amounted to an abandonment, the answer ought to have been, that they did not. Questions of abandonment often depend on complicated facts, and are left to the jury; but here the matter was so plain, that the court would have been justified in charging the jury, that upon the facts, if believed, there was, in law, no abandonment.

2. The second error assigned is, in saying, that if the plaintiffs’ survey was void in the beginning, it could not become valid by any subsequent act. To understand this error, it must be noticed, that it had been contended by the defendant’s counsel, that the plaintiffs’ survey was void, under the act of April, 1783, because it was made before the warrant came to the hands of the deputy surveyor. The court said, that if the survey was void by the positive enactment of an act of assembly, nothing subsequent could make it good. But, they also said, that from the evidence, it ought to be concluded, that the warrant was in the hands of the surveyor before he made the survey. So that, certainly, the plaintiffs cannot say they were injured by this part of the charge.

3. But the error principally relied on, is supposed to lie in the following expressions: The principal point in the cause, as the evidence appears to the court, is, whether the particular spot in controversy, was so situated with respect to the place of residence, and the improvement made, as to indicate, by a reasonable presumption, that it constituted part of it. The settler had a right to include it — he had a right, in any way, to demonstrate his intention to do it. It is a point to be decided by the jury, whether it was intended as a part or not, by its distance, or its proximity, the nature of the soil, the waters, and any other considerations in relation to its position. If these circumstances indicated the particular spot in dispute, as a part of the general tract of the settler, so as to give reasonable notice of the fact to the subsequent warrantee, it would have been fraudulent in him, to have, under such circumstances, included it. On the other hand, if it was so remote, as, from distance and local situation, to furnish no indication of the settler’s intention to include it, the warrantee would have been justifiable in appropriating it to himself by survey, unless he had express notice of the settler’s intention to include it. The evidence and the decision of facts are referred to the jury; we have stated the law— it is for the jury, in conformity to the facts and the law, to give their verdict.” Now, as the attention of the court was not pointed to any particular matter of law, by request of the plaintiffs’ counsel, what we have to decide is, not whether it was not possible to deliver a more pertinent charge, but whether there was error in that which was delivered. The court undertook to lay down the general law, between a settler and a wammtee. And I cannot say, that, in their general principles, there was any error. If there are. particular circumstances which exempt the case from the general rule, it is the business of the counsel to ask the court’s opinion of the law on those circumstances. When Hess made his improvement, he had a right to take up four hutidi’ed acres under it, though he might take as much less as he pleased. And if he had, even in an inofficial manner, designated his boundaries, however little they might contain, any other person might have taken up all the land without them. But if a settler has made no indication of the extent of his claim, it would be prudent in any other person who means to take up land near him, to call on him, and request him to mark his lines. If this request is not made, but a warrantee proceeds to i make his survey, it must be at.his own peril; for, in case of a dispute, I know no way of deciding it, but by the opinion of a jury, as to a reasonable location of a settler’s tract; regard being had to shape, soil, water, and other circumstances. The settler, it is true, has no right to more than four hundred acres — but the warrantee eannot locate these four hundred acres, just as he pleases. The jury must decide between them. But if the settler refuses, on request, to mark his boundaries, his conduct is so unreasonable, that every presumption should be made against him. He has no right to keep a large body of land vacant, under pretence of a title to four hundred acres in any direction he chooses. These are the general principles which have been heretofore laid down by this court, and I do not see any thing in this charge materially differing from them. Almost every case has peculiar circumstances, on which points of law arise. But it certainly is not the duty of this court, to be astute in reversing judgments, for matters on which the court below has given no opinion, and on which we must suppose, it would have given a right opinion, #had it been asked. In the present instance, I do not perceive error in any thing that was said, or that the jury were misled by the court’s omitting to say any thing, which, without the request of the plaintiffs’ counsel, they were bound to say. I am therefore of opinion, that the judgment should be affirmed.

Judgment affirmed.  