
    Lessee of William Dick v. Gilbert Cameron.
    EJECTMENT for 400 acres of land an Watson’s run. This was for land west of the Allegheny river, and the claim on both sides was, as actual settlers, under the law of 3d April, 1792.
    The evidence for the plaintiff was as follows.—William Watfon, a mill-wright, while engaged in building a saw-mill for David Mead at Meadville, in 1793, made an improvement, about five miles thence, cut down some trees, deadened some, and put his name on a tree, without intending to live there; and sold this improvement to William Dick for 3l. Dick came to Meadville in 1794, lived there, and followed his trade of a carpenter. In June, 1794, he built a cabbin, 16 by 14 feet, near Watson’s improvement, put the ribs on, but did not finish it. It was common for the inhabitants of Meadville to go out in companies armed, and make improvements. They did not confine themselves to one improvement for each. In 1795 the Indians killed two men, about five or fix miles from this improvement, and one man near the town.
    Brackenridge, for the plaintiff,
    offered to prove a survey made for William Dick.
    
    
      Woods objected to this, until a warrant or an actual settlement, were first proved.
    
      Brackenridge. What is an actual settlement? It is inconvenient to say, either that the first act of labour should be sufficient, or that actual dwelling on the land should be required. We ought to take an intermediate state.
    3 St. L. 211.
    
      The act of 1786 is to be understood as applicable only to the subject then in view, to protect settlements formed. In early times in this country, county courts protected improvements to a wild extent, even the marking of a name on a tree. When the judges of the Supreme court came out here, the chief-justice, a lawyer from Delaware, unacquainted with the land decisions of Pennsylvania, and with any thing but paper titles, went to the contrary extreme, and excluded all evidence of improvement. Alarmed at this, in the assembly of 1786, I introduced the law protecting settlements. And since, even in cases commenced before that law, the chief-justice and the judges of the Supreme court have changed their principles, and have declared that settlements give title, and that they would decree a warrant.
    But the expressions in the law of 1792 are not to be controlled by the law of 1786, but to be explained by what the legislature of 1792 intended to accomplish. Their intention was to give land to those who should expend labour on it. How was this to be done? The settler must first go and explore the country, then select a spot, and set a mark on it, put his name on a tree.—This ought to be respected by every other, and be protected. He would next deaden the trees, and so proceed in a series of acts, all which taken together, the jury, with chancery powers, will declare to be a settlement. And we must begin with the first act, and detail the progress till the settlement is accomplished. The survey ought to be the first act. The man is on the ground. And he ought to have it in his power to require the surveyor to mark his boundaries, in order to keep off others.
    
      Woods. Those who take out warrants are actual settlers, as well as those who begin by improvement; for they must make an actual settlement within two years. The improver begins by improvement and settlement, and must take out a warrant in ten years. The object of both is to effect actual settlements. The argument on the other side is calculated for the protection of land-jobbing improvements. The act requires the surveyor to survey only for those who have made actual settlements. No lands are protected against warrants, but such as are actually settled.
    2 St. L. 488.
    
      3 St. L. 210-1.
    
      3 St. L. 212.
    
      3 St. L. 210-1.
    
    
      
      Brackenridge. I agree with all that has been said, and offer the survey as proper evidence in part. But it will fail unless we can shew a settlement.
   President.

No doubt this may be proper evidence in part; but the proper order is to prove an actual settlement first, and, having done that, then to prove a survey. The question whether an actual settlement has been made, involves a point of law to be determined by the court. Whether the party has done certain acts, is a question of fact, which the jury must decide. Whether those acts amount to an actual settlement is a question of law which the court must decide.

It was then proved, that, in June, 1795, Dick, with other improvers assisting him, made between 300, and 400 rails, put them up in a fence, four rails high, inclosed about one-third of an acre, dug it with a hoe, planted corn, potatoes, and garden-feeds, and returned home to Meadville.

Brackenridge then proposed to prove, that, in September, 1795, Dick put another person on this land, as his agent, to improve for him.

Woods objected to such testimony. No person, who has not a warrant, can, under the act of 1792, derive a title from a settlement, unless it be made by himself. The grantee of a warrant may either make or cause to be made, the actual settlement required. The improver without warrant must make an actual settlement.

Brackenridge. The distinction is too ingenious, and favours more of the casuistry of the schools, than the found deductions of reason. This could not be the meaning of the legislature. Law is founded on reason, and on various other grounds, one of which is principles or maxims. This is one of the noblest grounds of the law; and one maxim is Qui facit per alium facit per se. It must have been the intention of the legislature to provide for those who are not able to supply themselves with provisions, and might with to engage as agents to others for money, or a part of the land. It is true the law has been abused, by the appropriation of many tracts by means of agents.

Woods. Those agents and their employers can be equally provided for, by supposing the title veiled in the agent, under an agreement to convey to the employer.

3 St. L. 211-2.

3 St. L. 211. 212.

President. The law of 1792 has it in view to accommodate two different descriptions of persons; those possessed of money, which they were desirous to employ ill the purchase of even more land than they could occupy themselves; and those who, without money, were desirous to appropriate to themselves a trait not exceeding 400 acres of land, as a residence and fund of subsistence. This law, therefore, has two objects, to increase the money in the state treasury, and to settle the frontier lands. Whether these views of the legislature be so compatible, as to be effectually and beneficially pursued together, and which, when they clash, ought to be favoured, some may doubt.

However this may be, vast quantities of land have been appropriated or claimed by individuals, by both methods. The claim by one man of any quantity, however great, by means of money, was plainly within the view of the legislature, and is sanctioned by this law. The claim, by one man, of any quantity exceeding 400 acres, by means of labour, was not within the view of the legislature; and having been made in a manner, and to an extent, amounting to an abuse of the law, we ought to lay hold of any words in the law to restrain it within the bounds which the law meant, 400 acres.

We have, on former occasions, expressed an opinion, from which we now see no reason to depart, that it will bell accomplish the objects of the law, to say, that no title shall be derived from a settlement, but to the person by whom the settlement was made; and that the survey ought to be made for the resident settler, and not for the employer. The surveyor is to survey for him who has made the settlement. The grantee of a warrant is to make, or cause to be made, the settlement. As these words will justify this construction, if this construction will bell effect the views of the legislature, (and we think it will) the construction of the law ought to be limited by these words.—The law will then stand thus. He who would appropriate land by means of labour, must limit his claim to 400 acres; the labour mull be exerted by him or under his direction; he must reside on this land, and make it the residence of his family. If any man would appropriate to himself more than 400 acres, he must begin with money, and take out a warrant. He who would appropriate land by money, may appropriate to himself any quantity whatever, for which he can purchase warrants, and proceed to make or cause to be made the settlements required by law. Thus the rich are permitted to engross land, only by means of money, and an opportunity is left to the poor to provide a competence, by means of labour. But if the rich were permitted to engross both by money and by labour; the poor would be excluded from all means of procuring land.

But however this might incline us to consider the testimony as improper, we will not so far determine the point as to exclude it. We will therefore receive the testimony, but under this condition, that, if there be a verdict for the plaintiff, the defendant shall have leave to move to set it aside on this ground, and to have judgment of nonsuit entered.

Evidence was then given, that, in September, 1795, Dick put one Mushrush in possession of this land, that there were then less than an acre in corn and potatoes planted in the spring before, and, though no cabbin was near this, there were three on this tract of land, two of which were understood to have been built by Dick; that Mushrush and his son went into one of them, but that his family was not in that part of the country; and that he cleared, and burned brush; that in March or April, 1796, he was clearing, had about four acres cleared, and had timber cut for rails; that Dick then went to warn Cameron off; that Cameron was not then on the place, that he claims two or three other places, and has two sons, one grown up fit for a man’s work, another not so, and that his wife resides in Meadville; and that one Jackson was then on the place.

Brackenridge then offered to prove, that Dick had made a survey round this land.

Woods objected, because no actual settlement had been made.

President. If the survey was made during the time that Mushrush was resident on the land, it may be given in evidence as an act of his or of Dick, circumscribing the boundary of his settlement then begun and profecuting.

A witness then swore, that, in April, 1795, he run the closing line of a survey for Dick.

On the part of the defendant, it was proved, that, in August, 1793, he raised a house on the land, that another cabbin was built on another place for his son, a working lad; that the Indians were troublesome, and he left that part of the country, and went, to Northumberland county, where he had his family; that, in spring 1794, he prepared to remove with his family, which, being large, he could not take over the mountains then, left them on the weft branch of the Susquehannah; that he proceeded with his eldest son, lived in the cabbin, and worked on the land; that, in harvest, he returned, and brought up his family to Pittsburgh, where he said he would leave them, till the Indians were settled; that, in May or June, 1795, he with others planted an acre of corn and potatoes, digging the ground with their axes; that, before Mushrush came on the land, or into that part of the country, Cameron had put one Jackson on it for him; and that Jackson has continued to live on it ever since. It was also proved, that Mushrush worked on another place, but resided generally near Pittsburgh; that among the company with whom Dick went in 1794 to make improvements, it was agreed to draw lots for the improvements; that Dick drew that near Cameron’s cabbin; that they knew of Cameron s cabbin, and several other cabbins; that they declared, if those who had made the cabbins returned, they would give up their claims; and that Dick has another improvement, and lives with his family at Meadville.

President. It does not appear, that any one for Dick lived on this land, before Mushrush; and before him, Jackson was placed on the land, and has continued to reside on it, in opposition to Dick.

Verdict for the defendant.  