
    *AT A CIRCUIT COURT, AT BEDFORD,
    NOVEMBER, 1803.
    CORAM, YEATES AND SMITH, JUSTICES.
    Lessee of John Holmes against Thomas Hay.
    An improver of lands, taking out an application including his improvements, and obtaining a survey, is thereby concluded, and cannot hold contiguous lands under his improvement right.
    EjecxmeNT for 300 acres of land in Bedford township.
    The plaintiff claimed under a warrant to Thomas Nelson, dated ist July 1762, for 200 acres, including an improvement made by his father, Joseph Nelson, at a place called the Shaw-anese Cabin, on the great road, about eight miles westward from Bedford,
    
      Nelson brought an ejectment against the now defendant, for these lands in Cumberland county, to October term 1762, in which a rule was obtained for the tenant to appear, and plead in 20 days, or judgment against the actual ejector. No judgment was entered thereon; but a writ of possession was issued to January term 1763, which was not returned.
    A judgment being obtained in July term 1770 against Nelson, the lands in question were levied on, upon an alias fierifacias, returnable to October term 1771, and the same having been condemned by an inquisition taken on the 24th April 1790, Thomas Buchannan, esq., the then sheriff, by deed dated 15th July 1790, conveyed the premises to the lessor of the plaintiff in consideration of 53I. 10s. which was duly acknowledged in court.
    The plaintiff’s counsel, before they examined their witnesses, also shewed an application of Thomas Hayes, for 200 acres on the waters of Shawney Cabin creek, adjoining William Thompson and Thomas Nelson, including his house and other improvements in Cumberland county, dated 4th November 1766; and a survey made thereon of 170! acres, on the 28th April 1784, adjoining the said Thompson and Nelson and others, which application the defendant on the 6th May 1780, granted and conveyed to John Graham in fee.
    The plaintiff’s difficulty lay in ascertaining, that a survey had been made under Nelson’s warrant. Proof was given that the lines were marked on all the different courses, except one. Most of these however agreed with the surveys of the adjoining tracts ; but a swamp white oak was discovered beyond the old *road where there was no correspondent survey, which on being blocked, counted not less than 40, nor more [*589 than 42 years back. One witness moreover testified, that the defendant acknowledged nine, years ago, that the survey had been made on Nelson’s warrant; and shewed where it crossed the Mile Hill. And another witness testified, that he heard the defendant declare between 1769 and 1773, he was the owner of the tract, which he afterwards sold to John Graham, but that Nelson had the right to the tract in question, and that it did not belong to him, the defendant.
    The defendant rested his pretensions on a settlement and improvement. It was asserted, that he had built a house on the tract in dispute, and cleared a few acres in 1758, adjoining to, but distinct from the lands and improvements which he had sold to John Graham, and had occupied the same ever since.
    The plaintiff’s counsel objected to any evidence being received of such improvements. A man can have but one settlement. The defendant’s application calls for his improvements, and also for Thompson and Nelson. The survey made thereon also excludes the lairds in dispute, and all the adjacent surveys bind on Nelson.
    
      The defendant’s counsel answered, that a man might have more than one improvement. It was customary to take up lands in this way, in order to provide for a person’s children.
    Yeates, J. It is most usual to go into the evidence of improvements, and for the court to declare its operation afterwards, on the whole case coming before them. But by the plaintiff’s anticipation of the title of the defendant, the legal question is brought before the court on the testimony produced by the plaintiff alone. If I am called upon for my opinion, on what I have hitherto heard, I have no difficulty in saying upon the evidence before us, that the defendant is bound by the terms of his application, and the survey made thereon, both which exclude the lands in question.
    Mr. Duncan for the plaintiff,
    observed, that the two titles were so intermixed, that the plaintiff was necessarily impelled to disclose the defendant’s application and survey, to render the testimony of the witnesses intelligible. He was content, that the legal question should be determined, as if taken up on the defendant’s offer of the present testimony, and the objection * 1 *made thereto, on shewing the defendant’s application J and survey. This was not the case of two improvements made for the father and children, for it was well known that the defendant, though married many years, never had a child.
   Yeates, J.

The matter must be judged of under the offer of the parol evidence, and the exception taken thereto. The improvements are said to have been made on distinct contiguous tracts, by a man without children. The defendant’s application in November 1766 is very minute and particular. It designates Thompson and Nelson as abounding thereon, and it includes the defendant’s house and other improvements generally, without restriction. It therefore excludes the tract in controversy. Is not then the defendant concluded under such circumstances, by the lines he has himself established ? If he is so bound, can I deny that the evidence offered confers no right, and is therefore irrelevant ? The testimony strikes my mind as giving not a shadow of title to the defendant, and if heard, it could answer no purpose whatever. (2 Bos. and Pull. 525.) I therefore feel myself bound to overrule it.

Smith, J.

Having formerly been concerned as counsel, between another plaintiff and this defendant, wherein the title to these lands came in question, I have hitherto declined giving any opinion in this case. On the abstract question, however, I am compelled to declare, that I perfectly concur in the opinion which has just been delivered.

At the instance of the defendant’s counsel, the court adjourned the further hearing of the cause. During the adjournment, a compromise took place between the parties, and at the meeting of the court, by consent, a verdict was given for the plaintiff.

Cited jn 3 P. & W. 433 in support of the proposition that the exercise of acts of ownership for any length of time, will not raise such a presumption of a grant from the Commonwealth, as to be of itself a good title.

Messrs. Hamilton and Duncan, pro quer.

Messrs. Clark and Brown, pro def.  