
    [Pittsburg,
    October 1, 1824.]
    The Trustees of the WESTERN UNIVERSITY of Pennsylvania against ROBINSON and others.
    IN ERROR.
    The act of the 18th of February, 1819, vested in the trustees of the Western University of Pennsylvania, the title to forty acres of the vacant land belonging to the commonwealth, adjoining the out-lots of the town of Allegheny, subject to the right of common pasture, given by the act of the 11th of September, 1787, to the inhabitants of the said town.
    From the record of this case, returned on a writ of error to the Court of Common Pleas of Allegheny county, it appeared, that it was an ejectment for forty acres of land near the town of Allegheny. The plaintiffs below, who were also plaintiffs in error, claimed under a patent from the commonwealth, in pursuance of an act of assembly, passed Feb. IS, 1S19, by the third section of which it was enacted, “that forty acres of the vacant land belonging to the commonwealth, bounded by, or adjoining, the out-lots of the town of Allegheny, be and they are hereby granted to the trustees of the Western University of Pennsylvania, to be forthwith laid off in one entire body, in such parts as the trustees shall designate, upon which the university shall be erected; to have and to hold, to them and to their successors for ever. And upon the application of any person duly authorized by the said trustees, to the deputy surveyor of Allegheny county, he shall survey, or cause to be surveyed, the lands as aforesaid, and make return thereof; and thereupon a patent shall be granted, free of expense, ‘ to the Trustees of the Western University of Pennsylvania/ in the usual manner and form, under the laws of this state in such case made and provided.” A survey was made, and accepted, and a patent issued to the trustees of the university.
    The defendants claimed under a prior grant from the commonwealth, and made title as follows: — By an act of assembly, passed on the 12th of March, 1783, it was enacted, that a tract of land, bounded as is directed in the said act, should be located and laid off, for the purposes therein mentioned, “ reserving to the use of the state, three thousand acres, in an oblong of not less than one mile in depth, from the Allegheny and Ohio rivers, and extending up and down the said rivers, from opposite Fort Pitt, so far as may be necessary to include the same.” The survey was made, as directed by this act; and the land in dispute was within the reserve of three thousand acres. On the 11th of September, 1787, (2 Sm. L. 414,) another act was passed, by which, after a recital “ that a sale of the said reserved tract of three thousand acres, if laid out, and disposed of to the best advantage, would furnish a considerable sum of money towards discharging the debts due by this state, it was enacted that, in order to attain the said end in the most serviceable manner to the state, the president and vice-president in council, should be empowered, to cause to be surveyed and laid out, a town, in lots, with a competent and suitable number of out-lots, for the accommodation thereof, in the said tract, &c. and that upon the return of the said surveys to the president and vice-president in council, they should be authorized to sell the whole of the said lots as they should think most to the advantage of the state, and to convey the same.” By the fourth section of this act, the president and vice-president in council, were directed to reserve, “out of the lots of the said town, for the use of the state, so much land as they should deem necessary, for a court-house, jail, and market-house, for places of public worship, and for burying the dead; and loithout the said town one hundred acres for a common pasture.” The town was laid out, in pursuance of this act, and also one hundred acres for a comman pasture. The lots and out-lots were afterwards sold, and at the time of sale, a plot was exhibited, in which the said one hundred acres were laid down for a common, and it was publicly stated bj' the commissioners “ that there were commons to the town of Allegheny, but none to Pittsburg, and that cattle might run there.” The defendants were purchasers of some of the town, and out-lots, and in their patents, there was expressly given to them “ the free use, liberty, and privilege of the said common ground.” It was part of these one hundred acres laid out for a common pasture, that was surveyed for, and granted by patent to, the trustees of the Western University; and the question was, whether they took it discharged of the defendants’ right of common.
    The president of the Court of Common Pleas charged the jury in favour of the defendants, for whom a verdict and judgment were Tendered.
    
      Baldwin, for the plaintiffs in error,
    stated the question to be, What rights the purchasers of lots in the town of Allegheny acquired, under the act of assembly of 1783, and whether the commonwealth retained a right which they could convey to the university,'free from the right of common cláimed by the defendants? He referred to the acts of the 13th of March, 1783, 2 Sm. L. 63, of the'llth.of September, 1787. 2 Sm. L. 414, and of the 18th of February, 1819. Pam. L. 61. He observed, that statutes were to be construed according to the legal import of their language, and where the common law has fixed a meaning to words, that is to be the guide in giving them a construction. 6 Bac. Ab. 383. 19 Pin. Ab. 512. Faugh. 169, 170. Common pasture was unknown in Pennsylvania, when the act of September 11, 17S7, was passed; and when the legislature adopted the term in that act, it must be understood as using it in the sense given to it by the common law,j and the statutes relating to that subject. By statutes of Merton (20 H. 3. c. 4.) and Westminster, 2, (13 E. 1.) 
      if sufficient be left for the commoners, the lord may enclose the residue of the common. 5 Fin. 1, 2, 3. It is a proper subject of inquiry, therefore, whether sufficient remains after taking off the the forty acres given to the university; and this can only be ascertained by a jury. Who the commoners are, it is difficult to designate. There is no reason why all the neighbours, the inhabitants of Pittsburg and others should not partake of the right of common. The out-lots and the town lots were sold together, and every purchaser of an out-lot, had also a town lot; to which does the right of common belong? The legislature seem to have contemplated an appropriation of this ¡and to other purposes than those of common; for while they declare, that the streets, lanes, and alleys of the town shall be common highways for ever, no such expression is used in reference to the common pasture. If the legislature did not retain the right to grant the land in controversy, the act of assembly of the 3d of March, 1818, Pam. L. 13S, 139, to provide for a penitentiary, to be erected on land adjoining the town of Allegheny, is liable to the same objection; and yet the propriety of that act has never been questioned.
    
      Biddle, for the defendants in error.
    If the university had taken their forty acres in a convenient place, the lot holders would not have complained; but if the present patent stands, it will prove ruinous to them. They must therefore insist upon their rights. The law, with respect to enclosing commonable land, applies only to cases in which the right of common is prescribed for, and the bounds not ascertained, but not to those in which there has been a grant of common by definite limits. What is a reasonable extent of common in the unlimited vvaste land of the lord, is to be decided by a jury. Tyring hands Case, 4 Co. Rep. 39. Ruff. Sta.t. 109. 13 E. 1. c. 46. 1 Reeves’ Hist. Eng. Law, 262. 2 Id. 209. Where the right of dower is by grant, it is to be enjoyed according to the grant. Modus et conventio, vincunt legem. In the present case, common was granted in one hundred acres of land, defined by survey, and this right cannot be abridged. It would be impossible to ascertain what would be a reasonable extent of common. The quantity of land necessary for that purpose, will increase with the population of the town; and what would be sufficient now, would be wholly inadequate a fewjjyears hence. The erection of the penitentiary gives no strength to the opposite argument. It was*erected with the acquiescence of the inhabitants, who stood by, giving no notice of dissatisfaction; and therefore forfeited whatever legal rights they may have had. 1 Johns. Ch. R. 354. The town of Manchester w'as laid off by the late Colonel Burd of Virginia, with a common between the town and the river, which was promised merely by parol, yet a decree was given in favour of the inhabitants against a subsequent purchaser from Colonel Burd of part of the common. 3 Munf. 359. By the act of 1783, three thousand acres were reserved for the use of the state. The object of the sale authorised by the act of 1787, was to raise money to pay the debts of the state; and the lots were intended to be offered with such advantages, as would produce the best price. The right of common no doubt contributed to raise the price for which they were sold; it entered into the contract, and, to deprive the inhabitants of this right, for which they have given a valuable consideration, would be a violation of that contract. Co. Lift. 47. 9 Cranch* 17, IS.
   TilgiuiaN, C. J.,

(after stating the case,) delivered the opinion of the court as follows:

The first point made by the plaintiff’s counsel, is, that the right of common was not confined to the purchasers of the town and out-lots, but was reserved for the use of all the citizens of the state; consequently, it was the property of the state, and subject to be disposed of, at the pleasure of the legislature. But it really appears to me, that the meaning of the law is too plain to admit of argument. When a reservation was intended, for the use of the state, it was so expressed. The land necessary for public buildings, &c. was to be reserved for the use of the state; but the one hundred acres were to be for a common pasture. We can easily conceive, that this right of common might be of great service to the inhabitants of the town, or the residents on the out-lots. But that a right of common in one hundred acres of land on the Allegheny river, should be reserved for the use of all the citizens of Pennsylvania, is an absurdity too great to be attributed to the legislature; nor are there any words in the act, from which such an intention can, with any plausibility, be drawn. It is not expressly said, for whose use the common was to be; but having directed that a town should be laid out, and the lots sold, the ob- . vious meaning is, that it should be for the use of the holders of those lots. Whether the right should be' confined to the owners of town lots, or embrace the owners of out-lots also, is another question, in which the plaintiffs have no concern. The supreme executive council did not exceed its powers in laying out this common, and granting it to the purchasers of lots. It was so ordered by the law under which they acted, and no doubt, in consequence of this privilege th^lots brought a better price; and thus the object of the legislature, to raise as much money as possible for the payment of the public debts, was answered. The defendants, then, have paid value for the right which they claim. This right of common is an estate well known to the law. It is an incorporeal hereditament, giving to the owner of one tract of land, the privilege of common in other lands; a privilege annexed t'o the land, and passing by the conveyance of the land to which it is annexed. Nevertheless, the property in the soil remained in the commonwealth, subject to the right of common; and, if the commoners had released their right of common, the estate of the commonwealth would have been absolute* By this grant, then, to the trustees of the university, all the- right of the commonwealth passed; that is to say, the right of the soil, subject to the right of common. But it was contended by the counsel for the plaintiffs, that supposing the defendants had a right of common, the one hundred acres were more than was necessary for that purpose, and the jury should have been instructed, that if they thought so, they ? hould find for the plaintiffs for the surplus. But in this, I think, the learned counsel was mistaken. In England, when lords of manors, having<,a great extent of waste ground, enfeoffed, auy one of part of the arable land, it was usual that the feoffee should have common in such wastes, as incident to his arable land, and this was for the interest of both lord and tenant; because the arable laud could not be tilled or manured without beasts, and they could not be supported without pasture. . If the tenant was disturbed in bis enjoyment of common, he had remedy by writ of assise. But sometimes tenants 'were unreasonable, and h&rrassed their lords by actions of assise for enclosing and cultivating part of the wastes, when there was sufficient left for common. This was an injury to agriculture, and therefore it was provided by the statute of Merton., (20 H. 3. c. 4.) that it should be inquired by assise, whether there was sufficient common, or not, and if there was, the lord might improve the residue. And by the statute of Westminster, 2, (13 E. 1. c. 46.) it was further provided, that the statute of Merton should not only bind the lord’s tenants, but neighbours also, who claim common pasture as appurtenant to their tenements. But these statutes were not applicable to Pennsylvania, where the relation of lord and tena».', rever existed. I know of very few instances of rights of common. And, in the case before us, it is evident, that an inquiry whether there be sufficient common for the present inhabitants of Jlihp.heny town, exclusive of the forty acres claimed by the pJaimiiis, would he altogether improper and unjust. The extent of the common ground was exactly ascertained by metes and bounds, and the legislature, who had a right to judge, deemed it not more than sufficient. The purchasers of the lots, contracted on that assurance, and have a right to insist, that the quantity shall not be lessened. A specific contract of this kind, would not fall within the reason of the statute of Merton, even if that statute extended to Pennsylvania, which it does not. The grant of common, in this case, looked forward to future generations. Even if sufficient were left for the present lot-holders, exclusive of the quantity claimed for the university, it might be quite insufficient fifty years hence, when Allegheny may be a populous city. And it would not answer the purpose of the plaintiffs, to take possession of the forty acres now, and restore them, when the increase of inhabitants shall require more extensive grounds for common. The plaintiffs claim the absolute, unincumbered right of soil. Their object is, to build on part of the ground, and soil the remainder; and they have therefore very properly rested their case on this immediate, and absolute right. But, it has been objected, that if this right of common exists, the inhabitants may prostrate the buildings erected for a state penitentiary, by virtue of the act of the 3d of March, ISIS. There is no ground, however, for apprehension on that head. When the law for the erection of the' penitentiary' was passed, the state had the right of soil, subject to the right of common. This right of common, the lot-holders might either release, or modify at their pleasure. ttThe state possesses the inherent power to appropriate to itself, for public purposes, any private property, making just compensation. It is provided by the 9th article of our constitution, (sect. 10,) that no man’s property shall betaken, or applied to public use, without the consent of his representatives, and just compensation being made.” Now it is understood, that the Mlegheny lot-holders were of opinion, that the erection of the penitentiary on part of the common ground, was for their interest, without further compensation; and on this understanding, the building has been erected, at a very great public expense. After this acquiescence, the proprietors of the lots are bound. It amounts to a contract. It is equivalent to a release pro tanto. While I am on this part of the case, I may be permitted to suggest, that possibly an accommodation between the university and the commoners, might not be impracticable, or even very difficult. There is no reason to suppose, that the present proprietors of the lots, wish to impede or embarrass the noble design of the legislature, in erecting a university in the western part of the state; or that they are insensible to the great advantage it would be to the town of Mlegheny. Deducting forty acres for the university, there would still be fifty left for a common; and perhaps those forty acres might be so located, as to satisfy both parties. This, however, is but a suggestion, which must not draw the court aside from its duty, to decide according to law. Having considered the pase, certainly with no prepossession unfriendly to the university, I have not been able to entertain a doubt, that the defendants’ right of common is unextin-guished, and unextinguishable, but with their own consent. Before I conclude, it is proper to remark, that on the question, Who are entitled to the right of common, whether the owners of town lots only, or also those of oui-lols, no opinion is intimated; and the court requests, that no inference may be drawn from any expression which fell from the bench in the course of the argument. On further reflection, it is considered as a point of some difficulty, on which neither of us has come to a decided opinion.

Judgment affirmed.  