
    AT A CIRCUIT COURT, AT PITTSBURGH,
    OCTOBER 1800.
    CORAM, YEATES AND SMITH, JUSTICES.
    Lessee of Nial M'Laughlin against Nicholas Dawson.
    Actual settlements under the law of 3d April 1792, necessarily involve in them a personal residence on the land.
    Ejectment for 400 acres of land on the northwest side of the river Ohio, between Big and Little Beaver Creeks.
    The parties claimed under their respective actual settlements on the land in question, and their pretensions appeared on the evidence as follows :
    The lessor of the plaintiff on the 4th April 1792, crossed the Ohio, grubbed a small piece of ground, near to a cabin which had been erected and covered in by one Link in 1790, cleared a spot about 40 feet square, made 10 or 15 rails which he put up, and planted a few seeds of corn. On the nth of the same month, he is found living and sleeping in this cabin of Links, and in the two following months, occupied in digging his small patch, planting potatoes and sowing garden seeds. He makes his chimney, and though notified of danger from the Indians, stays one night longer. In August, he makes a door to the cabin. — In October, he carries out with him a bag of Indian meal, wooden vessels, tin cup, coffee pot, bake oven, and straw mat to sleep on, with a mattock and axe, (the last of which is i much injured *by one Daniel Swearingen, who claims the *62] land,) and occupies himself in making rails. Only he and Charles Philips were known to have resided on the northwest side of the Ohio, with the intention of making settlements, in the year 1792.
    In 1793 he makes several hundred rails, continues to grub, makes a small piece of meadow, and lives in the cabin, with his bedding and small household utensils about him. On the 16th May 1793, he obtains a warrant descriptive of the lands, on which he procures a survey of 400 acres and 68 perches, to be made by John Redick, the assistant of John Hoge, deputy surveyor, on the nth December following, and pays the surveying fees.
    In 1794, the lessor of the plaintiff has a rolling frolic, collects and burns his logs, and clears the ground. Pie puts in with his oxen four or five acres of Indian corn, attends it during the season, and raises a crop of near 60 bushels.
    In 1795, he lives in his cabin and has his cattle on the land; he raises turnips and hauls them home.
    In 1796, he continues his settlement, and adds four acres to his former field ; and in 1797, he clears eight or ten acres more of land, constantly living on the ground, except when immediate approach of danger from the savages induced him to remove occasionally therefrom.
    The first commencement of the defendant’s improvement was one day earlier than the opposing claim.
    The defendant, on the 3d April 1792, crossed the river in company with two others, in search of lands. On that day, he planted ten or fifteen hills of Indian corn, deadened seven or eight trees, and marked the initial letters of his name with gun powder on the cabin of the aforesaid Link. In the two following months he planted 400 hills more of Indian corn, and hoed them occasionally. In September he grubbed two acres, rolled the logs, burnt them and the brush, and cleared the ground. In October he takes out a plough and horses, ploughs the ground he had cleared, sows two bushels of rye, and builds a good block house, about 12 feet square, but does not cover it in. During this year he lived with his brother Benoni, at the mouth of Mill Creek, about four miles distance from the lands in dispute.
    In February and March 1793, the defendant with an assistant, makes clapboards, covers his block house, makes a door, and sleeps one or two nights therein. He clears four acres more land, and mauls rails for six acres. In the following month he incloses a field of seven acres with a fence, plants it with Indian corn, and afterwards attends it from time to time. He *63] and George Clark are seen together in the block house, and *the aforesaid Daniel Swearingen demands of John Redick, the assistant of the district surveyor, to make a survey in consequence of the defendant’s settlement, which is refused on the ground of the earlier application of the lessor of the plaintiff to him for a survey. In clue season, the defendant pulled his corn and lodged it in the loft of his block house. During 1793, the defendant was engaged as a six months man at Philips’s station.
    In 1794 the defendant was seen ploughing, and he disposes of his former crop of corn. He puts in more corn, which is seen growing. During this year he was also engaged as a volunteer on the frontiers.
    In 1795 he put in 2acres of Indian corn. He cropped with his brother Thomas at the distance of five miles from the lands, and lived with his father occasionally.
    In February 1796, the defendant married and removed with his wife into the block house, where they have resided since. He had eight or ten acres cleared and under good fence, and in 1797, he grubbed and cleared three acres additional, near the block house.
    It further appeared, that in 1792 the parties respectively warned each other against continuing their improvements, al-ledging their several claims, and that the plaintiff’s warrant was not entered in the office of the deputy surveyor of the district until the 23d August 1793.
   The cause was argued at considerable length, and with much ability, by Mr. Woods for the plaintiff, and by Mr. Ross for the defendant. After which the court charged the jury to the following effect, after recapitulating the testimony on both sides minutely.

The question is, which of these claims ought to prevail; and is naturally subdivided into two points; 1st, Whether the pretensions of the lessor of the plaintiff, as an actual settler, are preferable in law to the defendant’s, previous to the 23d August 1793, when his warrant was entered with the district surveyor? 2d, Whether since that period he is not vested with additional equity ?

The act of assembly of 3d April 1792, 3 Dall. St. Laws 209, certainly had in view the population of the back country, and the forming a barrier on the frontier lands north and west of the rivers Ohio and Alleghany, and Conewango creek, by placing numerous families thereon. Whether the titles are derived originally from labour bestowed on the ground, or disbursement of cash, no warrant or survey shall, by the 9th section, vest any title to such lands, “ unless the grantee has made, or shall within “*two years thereafter, make or cause to be made’an “ actual settlement thereon, by clearing, fencing and cultivating,[*64 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 settling the same,” &c.

Link’s cabin being erected before the passing of the law, im-powering the sale of these lands ; gives no equity either to him or the plaintiff; nor can the planting of a dozen hills of corn, deadening seven or eight trees, or marking the defendant’s name on the cabin, confer any right.

The improvements and cultivation of the lessor of the plaintiff will be found, on an accurate review of the evidence, to be inferior in extent to those of the defendant, in each distinct year, except 1797. The one depended on his own exertions, and was poor; the other could call to his assistance the services of his friends and connections, and commanded money. But the former possessed one strong prominent feature of an actual settler, a constant personal residence on the ground, unless when intimidated by the impending danger of a savage foe, encompassed by his small stock of provisions and bedding, and his few family utensils and implements of husbandry; while the latter was engaged as a volunteer in the public service, or lived with his father or brothers. In correct language, it is physically impossible that a man should have two homes at the same time. It may as well be said, that a body may be in different places the same instant. Acts are the most unequivocal proofs of the bent of the mind. Here McLaughlin’s intention to reside on the lands in dispute is completely demonstrated, by personal residence and a permanent adherence to the soil. The intent is executed in fact.

In Ewalt’s lessee v. Highlands, (4 Dall. 161,) at May assizes 1799, in this place, we delivered our explicit opinion, on due consideration, that “a personal residence must, in the nature “ of things, accompany an actual settlement, unless impending imminent danger exists, which would prevent a man of reason“able firmness of mind, from continuing on the land ; ” and we are now more firmly impressed with the correctness of those sentiments. But it has been asserted at the bar, that this construction would throw actual settlers into a worse situation than warrant holders, under the proviso contained in the close of the 9th section of the act of 3d April 1792. This we deny. That proviso only respects the progress of the improvement in clearing two acres for every 100 acres in each survey, erecting a messuage thereon, and residing thereon for five years ; it does not relate to the *commencement or origin of the title. *65] In the reason of the thing, the rights of actual settlers must depend on the priority of their settlements ; and a settlement necessarily involves in itself a personal residence of the party on the ground. And such is the legal idea of an improvement as depending on the act of 30th December 1786. 2 St. Laws, 488.

The light in which we have viewed the first point, renders it unnecessary to go into the second, in the present case. The court, conceiving that the lessor of the plaintiff is the first actual resident settler on the lands in question, according to the true meaning of the legislature, and entitled in that character to recover the possession of the lands, will only add, that to his former right he has added the legal right of a warrant.

Messrs. Woods and Sample, pro quer.

Messrs. Ross and Young, pro def

Verdict for the plaintiff.

The same principles were again discussed the same day in the case of the lessee of James Scott v. William Anderson, when the court adhered to their opinion as before delivered, and the jury were ready to give a verdict conformable thereto, but the plaintiff suffered a nonsuit.  