
    Lessee of Stephen Bayard v. Charles M‘Innes.
    EJECTMENT for 209¼ acres of land, on a lease dated 2d January, 1785.
    The plaintiff shewed a location No. 1293, dated 3d April, 1769, in the name of Samuel Thomson, for 300 acres, in Turtle creek bottom, adjoining a claim and improvement of Eneas M'Kay, and including his own improvement; a survey of 209¼ acres, made by William Thomson, the deputy surveyor, 30th June, 1769; and a patent to Samuel Bayard and Elizabeth his wife, and Samuel M'Kay, reciting the location and survey, and a deed from Samuel Thomson to Eneas M'Kay, dated 21st May, 1769.
    
      The defendant produced a location, No. 3400, dated 13th 1769, in his own name, for 100 acres on Turtle creek, between the two crossings, joining Angus M'Kay on the east, including his improvement; a survey of 116 acres, and 90 perches, made by John Henderson, then deputy surveyor, 10th December, 1784; and a patent, dated 19th April, 1786.
    Brackenridge, for the defendant,
    then read a written copy of an act of assembly passed 3d February, 1768, and of a proclamation by the governor, dated 24th February, 1768, reciting this act of assembly; both directing the removal of persons settled on lands not purchased from the Indians, but providing that this should not extend to settlers under the approbation or permission of the commanding officers to the westward.
    He then proposed to produce a witness to prove that Charles M'Innes had the approbation and permission of the officer commanding at Fort-Pitt, to settle on the main roads or communications leading through this province to Fort-Pitt; and that, in consequence of this approbation and permission, Charles M'Innes settled on the land in question, which was on a main road and communication.
    Ross, for the plaintiff,
    objected to any parole testimony; 1. Because such permissions must have been given in writing; 2. Because Charles M'Innes’s application does not recite it; and 3. Because, where there was no written permission, the commissioners of property could not take notice of it.
    
      Brackenridge. It is not required, either by the law or the proclamation, that the permission or approbation should be written. 2. It is not necessary, that a settler with permission should recite his permission in his location. The adverse applicant ought to have known, whether or not there, was a settler with permission on the ground for which he applied. It was not to be supposed, that the applicant was to make his application or location at random, or on a map; but to take care that his application was for ground unclaimed under any authority.
    Woods, for the plaintiff.
    The preamble to the opening of the Land-Office, 3d April, 1769, gives a preference to those who had settled plantations, especially those who had settled by permission of the commanding officers to the westward. But, notwithstanding the permission, if an improvement was not made till after the purchase from the Indians at Fort-Stanwix, no preference was to be given. But the preference was given only to those who applied on 3d April, 1769. For, if the person permitted, and to be preferred, did not apply on that day, he lost his preference. It was presumed, that, unless he applied then, he waved his preference. The proprietaries were then at liberty to grant the land to any other, and were not to keep up a preference to the settler any longer: for if they must keep it up for a day, they might be obliged to keep it up thirty years.
    
      Brackenridge. The word approbation implies, that there was no necessity for a written permission. Settlement with the knowledge is evidence of the approbation, of the commanding officer; and not being turned off, is permission. It behoved the applicant to apply only for land to which none other had a better claim. All applicants were supposed to know the ground, and they deceived the proprietor, if they made not a just representation.
    The objection of the loss of preference, unless application was made on 3d April, 1769, is the only formidable objection. From 1736, in consequence of the minority of the proprietors, legal titles could not be granted; and, on application to Mr. Logan, the agent, he permitted settlements, and gave a promise of titles, when the proprietors should be of age. After the proprietors were of age, in consequence of lord Baltimore’s claim to the southern border of Pennsylvania, permits were given to settle, and support the jurisdiction. This was an origin of a custom, that settlers had an equitable right, and the proprietors were bound to give them a title; and courts of justice invariably determined so, and directed in favour of improvers. Under this idea, people came over the mountains. The act of assembly, which I have read, sanctioned this before the purchase only if it was by permission. The proclamation of the governor, also a proprietor, is to the same effect. The preamble to the opening of the Land-Office respected only the locations put into the box or trunk; and took not away any right vested in those who had settled by permission. The preamble regulated only the preference between locations then put in, and took not away the right under the usage of Pennsylvania. It could not have been its intention to take away this right. The people of this country had no notice. There was but one gazette in Philadelphia. There was no post, nor advertisement. The settler depended not on the acts of the government, but on the strokes of his axe on the ground; and thought the man must be a robber, who would take away his land, from which all, but he who had permission, were banished by a law and a proclamation.
    
      
      
        See Appendix.
    
   President.

It may, on the whole be best, to receive the testimony: but we will reserve the point; that, if there should be a verdict for the defendant, there may be a motion for a new trial.

Evidence was then given, that M'Innes, in 1768, asked captain Edmonstone, the commanding officer at Fort-Pitt, for a permission for a piece of land. Edmonstone said he could give no permission to settle but on the road, and desired him to go and find a piece of land on the road, and come to him, and he would give him a permission. Immediately after this, M'Innes sent a man to this place, who grubbed, a week, and made four or five hundred rails, in the bottom between the two fordings of the creek, where he has his house and clearing now. And in March, 1769, he built a cabbin there, twenty-five feet square, and covered it. M.'Kay knew of M'Innes working there, and gave directions, that he should not be permitted to clear over his marked line, which he pointed out. M'Innes then lived at some distance, and settled another plantation, which he afterwards sold. In 1770, or 1771, there was corn raised at M'Innes’s improvement on Turtle creek; but he did not live there till 1782, or 1783.

The plaintiff then produced evidence, that the present deputy surveyor had traced the lines of the patent, and found corresponding line and corner marks on the trees; and that the survey of M'Innes interfered with those lines. Evidence was then given, that M'Kay had taken out the location in the name of Samuel Thomson, and had paid for the survey; that the conveyance from Thomson was not to be found; that M'Kay had forbidden M'Innes to work on this land; that M'Innes had agreed to forbear, if M'Kay would give him 4l. to pay for the surveying of another tract; that M'Kay and M'Innes agreed to submit it to three men to value M'Innes’s improvement; and that they valued it, (being, as appeared from a writing produced by the plaintiff, dated 15 November, 1770, signed by them, a cabbin, without roof or door, with a few rails deadened) at 45s.

2 Str. 1080. 3 Bla. Comm. 358, 399.

2 St. L. 268.

3 St.L. 782.

Note. In this case, a special jury had been ordered; (at a term in which the cause was not tried) and Mr. Brackenridge moved that the costs be paid by the plaintiff, on whose motion it was ordered.

President. The costs ought to be paid by the party putting off, or losing the cause. The bill of fees directs this.

President. The title is clearly in the plaintiff; unless it has been diverted by some act of M'Kay’s.—You will enquire, 1. Whether there was any agreed line; and 2. Whether, if there was, M'Innes has relinquished his claim under it, by a subsequent transaction.

Verdict for the plaintiff.  