
    *AT A CIRCUIT COURT, AT BEDFORD,
    NOVEMBER 1880.
    CORAM, YEATES AND SMITH, JUSTICES,
    Lessee of Jacob Stevens against Matthew Tracey.
    The law of 30th December 1786 is declaratory of the ancient doctrine of improvement rights.
    
      Ejectment for 216 acres of land in Morrison’s Cove.
    The plaintiff claimed under a warrant to Ludwig Wissinger for 200 acres in Morrison's Cove, on both sides of the Roaring Spring Run, adjoining John Ulrey on the northwest, and Samuel Wallis on the southwest, dated 14th September 1786. On the 9th November 1786, Wissinger conveyed to Stevens, in consideration of 20I., and he two days after procured a survey of 216 acres and allowance, including the lands in controversy.
    The defendant’s pretensions were as follows : One Jacob Neff came up into Morrison’s Cove in 1776, and improved, (as it was called,) within a survey regularly made for Henry Drinker, sometimes called Samuel Wallis’s land. The appropriation of this tract was notorious in the neighborhood, and Neff, before he began to work, was well acquainted with it. He erected a cabin thereon, about 20 perches from the line, cleared lands about it, and his clearing beyond the line occupied about one or one and a half acres. He expressed his intentions of building a mill on the lands in dispute, designing to dig the race higher up, near the cabin, and procured the water to be levelled. He cut down a few trees, and cleared a small patch for the site of the mill, but did no other work relative to the mill, though it was said mill irons were seen in his smith’s shop. During this period he lived with his father, three or four miles distant, and chiefly worked on the land of Wallis. In 1777 the settlement was broken up by the Indians, and Neff went off with the other settlers, and returned with them after the peace in 1784. He and his wife still continued to live on the place improved by his father, working occasionally on the lands of Wallis, which he afterwards purchased; but he bestowed no further labour on the lands in question until the fall of 1786, when he heard of Wis-singer’s warrant having been issued. He then removed the logs of the cabin from the land of Wallis, which had been thrown down during the war, and erected them on the land claimed by the plaintiff. Just before the plaintiff’s survey, he began to dig a race; eight or nine perches were dug when the survey was *781 Completed; this work might have occupied two men ' -* for two days.
    On the 14th November 1786, the said Jacob Neff obtained a warrant for 50 acres, including his improvement in Morrison’s Cove, adjoining Wallis’s land at the mouth of Roaring Spring Run, interest to commence from 1st March 1776, and procured a survey of 52^- acres and allowance on the 6th February 1787. On the 21 st February 1787, Stevens entered a caveat in the land office against Neff’s survey, and the first Monday in November following was appointed for the hearing. But without any hearing, or the caveat being withdrawn, a patent issued to Neff on the 10th March 1787. In the same year Neff built his mill, and Stevens afterwards commenced an ejectment against him, which came on to trial at Nisi Prius on the 28th May 1798, when a verdict was given for the defendant; but the 
      postea and judgment thereon were not produced at the present trial.
    Messrs. Hamilton and Brown, pro quer.
    
    Messrs. Riddle and Clark, pro def.
    
   The court summed up the evidence to the jury, and stated, that on the conflicting written titles, the plaintiff was entitled to recover by possession. His warrant was descriptive of the lands, and preceded the defendant’s two months. His survey was three days, elder than the warrant of Neff. The procuring of a patent before the day appointed for hearing of the caveat, must have been through oversight, mistake, or fraud, and cannot injure the plaintiff’s pretensions.

It remains then only to consider the unwritten evidence. Neff, during the revolutionary war, fixed himself within the known lines of Wallis’s survey, and builds a cabin. He accidentally clears a small spot over the line, cuts down a few trees, clears the place, and says he will erect a mill there. He is driven from the cove the succeeding year, returns in 1784, and neither in that year nor in 1785 does he prosecute his intentions. His home, during all the time, is with his father, at the distance of near four miles. When he finds that Wissinger’s warrant is taken out, and the survey about to be made, he bestows four days labour in digging a race. We would blush, if we said these different acts gave Neff an improvement right. The law of 30th December 1786, (2 St. Laws 488,) is declaratory of the ancient doctrine of improvements, truly understood; but the case of Neff has not one characteristic feature of an improvement, and it would be highly dangerous to the public security to give it that effect. Here is a mere clearing by mistake over ancient lines, without an actuál personal resident settlement, an intention of making it a place of abode, or the means of supporting a family. What signify his intentions of building a mill, not prosecuted ? *Or of what avail was the removal of the old cabin logs in the fall of 1786 ? We have no legal [*79 evidence of the former trial, or on what evidence the verdict passed; but if we had, though the former verdict is persuasive evidence, yet the jury are now bound to decide for themselves, on the testimony adduced.

It may possibly be that the defendant may have bought since the former trial, and in confidence of that verdict. But of this we have no evidence, and from what appears, we are bound to consider the defendant as Neff’s tenant.

Verdict, pro quer,;  