
    Stockman against Blair and others.
    1812. Pittsburgh Saturday, September 19,
    An actual settler cannot maintain for his improvement, without or a private one, by due unable to obtain former,
    A survey maybe madefy deputy surveyor-Son'of the war-J™11 at the time, andentel’ed it in his
    Where a leading warrant plainly describes land in district, it is in no respect a fraud upon the act of 3d April same’ and many adjoining previously delivered to the surveyor district into 61 which some of who handed down then of the district; and that the whole, after he had entered twelve or thirteen in his returned to surveyor whom he got them, who entered them all his own book'
    IN ERROR.
    THIS was an ejectment in the Common Pleas of Beaver county, for 200 acres of land on the waters of Big Beaver.
    The plaintiff claimed under an improvement and settlement, commenced by one Jordan; but it did not appear that any survey had ever been made tor Jordan, or any one claiming under him. It was in evidence however that line of the depreciation survey, had been considered as a boundary between one of the persons under whom the plaintiff claimed, and one of the defendants.
    The defendants made title as follows: one hundred and twenty-six warrants or orders of survey, for the Pennsylvania Population Company, were delivered to John Hoge the deputy surveyor of the eleventh district, on the 10th of June 1793. Immediately after the receipt of them, Hoge delivered all the warrants to Jonathan Leet, deputy surveyor of the ninth and tenth districts, in order that it be ascertained what number of these warrants could be located in his district, the leading warrant in the name of Matthew M'Connell, being special, and descriptive of a spot in Leeds district adjoining Hoge’s. Leet entered the leading warrant and twelve or thirteen others in his book, and re-delivered the whole to Hoge, by whose assistant Redicked all of them were entered in his book. The warrants entered by Leet, were by him located in his district, of which number was a warrant in the name of Joseph Magoffin, under which the defendants claimed; and the survey of this tract, which was made after the return of the warrants to Hoge, was returned by Leet to the surveyor-general’s office, accepted by , . , t . 1 : him, and a patent issued.
    The defendants objected to the plaintiff’s recovery, because he had no survey, for which they relied on Bond’s Lessee v. Fitz-Randolph 
      
      , Dawson’s Lessee v. Laughlin , and Cosby v. Brown’s Lessee 
      .
    
      The plaintiff asserted that a survey was unnecessary; but if otherwise,here was a line of a legal survey, the depreciation line, which brought the case within M'Rhea's Lessee v. Plummer 
      
      . He objected to the defendant’s title, that the survey was illegal because the warrant was not in Leeds hands then or afterwards, and because the warrants were all previously delivered to Hoge, who had no authority to hand them over to Leet. The entry in the books of both surveyors was a fraud upon settlers, and upon the act of the 3d, of April 1792.
    The President of the Common Pleas (Roberts) charged the jury in favour of the defendants upon both points! and a bill of exceptions was sealed, which was now argued by
    
      A. W. Foster for the plaintiff in error, and
    
      Allison and Baldwin for the defendants in error.
    Tilghman C. J. having been unwell, was not present at the argument, and gave no opinion.
    
      
       2 Smith’s Laws 207.
    
    
      
      
         Ibid.
      
    
    
      
       2 Binn. 124.
    
    
      
       1 Binn. 227.
    
   Yeates J.

The bill of exceptions in this case presents two questions to the Court for their decision.

1. Was the survey under which the defendants claimed the land, illegal and unauthorised under all the circumstances?

2. Was the plaintiff competent to support an ejectment?

1. It has been contended, that the survey made by Leet was unauthorised and void, because it did not appear that at the time the survey was made, the warrant was then in his possession. I admit that it does not so appear. But what then? Does the act of the 3d of April 1792 require it? By'no means. The meaning of the law on this point cannot be mistaken. The fourth section directs, that the deputy shall reside within or as near as possible to his district, and when he receives a warrant, shall make fair and clear entries in a book to be provided for that purpose, distinguishing the day on which he received it, which book shall be open at all seasonable hours, to every applicant. The fifth section directs that the deputy surveyor shall proceed to survey the lands described in the warrants according to their priority, but shall not survey any tract of land, that may have been actually settled and improved" prior to the date of the entry of the warrant, under such warrant. He shall keep a survey book, which shall be liable to be inspected by all persons on paying a certain fee for the search or copies of surveys. The intention of the law then was to give locality to the warrants thus entered, and to give notice thereof to all appliers. If the intended actual settler wished to appropriate to himself a particular spot, he could by inspecting the book of entries, ascertain whether it had been applied for by a special warrant previously entered, and in case of an indescriptive warrant unaccompanied by a survey, he might seat himself down and commence his improvements. Here would be full notice and perfect security, and the object of the legislature would be attained. It would be of no advantage to any adverse claimant to see the copy of the warrant, when he could inspect the entry book, which contained an abstract of all its material parts. As to the deputy surveyor, he had received the warrant which was duly .entered, and it could be of no moment either to him or others, whether he kept the copy in his hands, or delivered it over to another person. In either case his authority was precisely the same.

But it has been urged, that Hogg's entry of these thirteen or fourteen warrants already entered by Leet, tended to deception by holding out false colours to appliers. This cannot be. How could the entry of a leading warrant accurately and precisely descriptive of a particular spot, several miles distant from the known line of Hoge's district, and of a dozen other warrants adjoining and adjoining, serve to mislead a man of the plainest understanding? Such a person would at once see, that the palpable design of the entry was to give information of the leading warrant, and in what manner the succeeding ones would probably be connected and strung together. He would obtain every light he could desire by consulting the survey book of Hoge, who necessarily would be confined to surveys upon warrants within the limits of his own district. Upon this point I think the Court of Common Pleas judged correctly.

2. We know not by the bill of exceptions, when or where the plaintiff made his settlement, or what improvement he or his predecessors had made; but this we know, that his settlement was undefined by any survey official or private, and we are not informed of any consentible lines established between him and the adjoining neighbours. In Bond’s Lessee v. Fitz-Randolph at a Court of Nisi Prius in this place in May 1797, I expressed the sentiments of Judge Smith and myself, as to the necessity of an official survey, or a fair attempt to procure one by an actual settler, whereon to found his ejectment. The same determination was given by us in May 1799 in Dawson’s Lessee v. Laughlin upon full consideration. The first decision, which it is admitted has regulated the practice since, and has been acquiesced in above fifteen years, though at Nisi Prius, is intitled to some weight. It is of great moment that the law should not be in a state of fluctuation. But were it res integra, I see no reason, after the elaborate argument which the subject has undergone this term, to retract the opinion I had before formed. I think the doctrine is founded on the true spirit of the act of the 3d of April 1792, is bottomed on sound policy, and tends to prevent litigation. The pretensions of a plaintiff suing for his supposed right in a court of justice should be known and certain. Considered as a part of a new system for granting vacant lands, there is the same reason for requiring an official survey on the improvement of a settler, as that upon a warrant. No ejectment wouldlie by the limitation act, unless a survey had been made thereon, and with the same implied exceptions. Such’ settler evinces “ his conformity to the provisions of the act,” by complying with this pre-requisite. A contrary doctrine tends to retard the settlement of the country. The person first occupying the land with an intention of settling, would keep others desirous of settling at bay, unless his boundaries were circumscribed by some public and notorious act. In whatever direction they might choose to fix their improvements, in the same direction might he advance his claim, under the pretext of his prior settlement being intitled to a reasonable extent. These are some of the evils which were experienced before the American revolution, from a crude notion entertained by a few persons respecting the doctrine of improvements. Law suits were thus promoted, and.the permanence of landed titles was shaken. I do not assert however, that the unbending rule is, that in > all cases the official survey should be made previous to the institution of an ejectment by an actual settler. If he uses every reasonable endeavour to procure a survey, but fails in the attempt, he might circumscribe his boundaries as claimed by him, by some open act, which would be binding on him at a future day. He would thus do all that would lie in his power.

But we have been told that the plaintiff has adopted the line of a depreciation survey as one of his boundaries, and that the case falls within the principle laid down in M'’Rhea’s Lessee v. Plummer, 1 Binn. 227. In that case the lines had been before run and marked by legal authority, and the deputy surveyor after receiving the warrant, had gone upon the ground and proved the correctness of some of the lines which had been run. Here was an unequivocal act of adoption, and the running again and re-marking the lines, would have been an idle ceremony. But how is this depreciation'line adopted here by the plaintiff? What portion of space will a single line contain? We cannot substitute the arguments of counsel as the facts of the case; and no facts are set out in the bill of exceptions, from which we can infer a privity between the plaintiff, and Blair and Baker two of the defendants, from which he can derive a benefit from any line agreed upon between the two latter.

In every point of view, in which I have been able to consider this case, I am of opinion that the judgment of the Court of Common Pleas should be affirmed.

Brackenridge J.

Having been at the bar in this country, and having, with a view of being able to give advice to clients, considered the law of April 3d 1792, and formed a system of construction in my office, it will not be wondered at if I have been prepossessed by my own, opposed to the construction of others. It would be inconsistent with the opinions delivered to those consulting me, to say that in the capacity of judge I approve of contrary opinions, otherwise than in contemplation of law, where I may be bound to concede to the majority, and this for the sake of uniformity of decisions, that the maxim of the non quieta movere may be observed. I will only say in justice to myself, and for the sake of clients, that I could have anticipated no idea of the construction in many particulars put upon this law by the courts. In the particular before us, I could have had no idea that a settler could not recover in an ejectment without an official survey. I had thought it would be sufficient if he had in any Way designated his boundary. This was the old law of the doctrine of improvements, and I had not conceived, nor can I now conceive, that the act of 1792 made any change in this particular. Nor did the case of Fitz-Randolph and Bond, so far as I can recollect, or now observe, hold out the idea of the necessity of an official survey, where lines agreed upon, or in the popular language consentible lines, had designated the boundary. The same in the case of having made a private survey by marked lines. As to the attempt to get an official survey, how that could help I cannot comprehend. The object of a designation of boundary was twofold, to give notice to the public of the extent of the occupancy north, south, east or west, to the end that others wishing to appropriate from the general mass might know what remained; and in the second place, to ascertain for what it was an ejectment was brought, and of what on recovery an officer might give possession. But that an ejectment could not be sustained for an actual occupancy by settlement, without an official survey or any other designation of boundary, but that of the fence or line of the improvement, I could not have conceived. Much less could I have had any idea that a survey could be made, otherwise than by going on the ground and marking the lines. As to the taking the lines of an old survey, and draughting them in the surveyor’s chamber, it did not enter into my mind. In this and other particulars of construction, I have dissented iti my own mind, when they have been made by the courts. Montesquieu speaking of the British constitution, which he traces from its Saxon origin, applies the terms, “ ce beau systeme a eté trouvé dans les bois M this beautiful system has been found in the woods.” But it is impossible for me to apply this eulogy to that system which, has been found in the woods of our new settlement, because it does not appear to me to have been the best. But as has been said, it would be perhaps a greater evil to reverse it, than to let it now stand. I shall therefore leave it to those who have contributed to form the system, to say whether ia this case, the judgment of the court below is within the rule of it. As to an entry with sundry surveyors of different districts, I would take it to be a fraud, because it was calculated to mislead the settlers, if it could be supposed that any notice was given by the entry, of what was meant to be taken by a survey under it. And hearing of no decision on this head, I may be at liberty to reverse the judgment on this ground, and which I think it will be advisable to do.

It not appearing also that the question of the being able to support an ejectment for a possession by actual occupancy, and so far as the improvement extends, has received other than a Nisi Prius or Circuit Court decision, and not that I know of, having been at any time considered in term, I may also on this ground be at liberty to reverse the judgment of the court below. For it is impossible for me to comprehend, that under the act of April 1792, one half the object of which, it is acknowledged on all hands, was the settlement of the country, a person who had entered and settled, when put out of his messuage or possession, could not proceed by ejectment to recover that certain extent, without an official survey or any survey at all, or other designation of boundary than what his possession gave. As to the extent from his possession, whether according to the distance or the square of the distance, north or south, which is the ratio of gravitation, it might be difficult to say without a designation; and therefore I would have no objection to the confining his evidence and his recovery to this portion. But for this portion, 1 can see no principle of law, or fair construction of the act of assembly, which can hinder his re- ' covery. There was not a surveyor for every settler, to accompany him when he went to look out for the place where, and to survey when he fixed upon it. What is more, it would seem from the act, that he must have a settlement before the officer would be justifiable in surveying for him. And being put off this by an intruder, who would say he had the better right to have an official survey? Was the officer under the necessity of determining between them, or to leave it to an ejectment to try the right? The fact is, that official surveys could not be got in the first instance or for a long time; and must the law be suspended as to all right of regaining possession until this was obtained? It would seem to me that this at least well deserves a reconsideration.

Judgment affirmed-  