
    Jackson, ex dem. Hornbeck and others, against Seaman.
    I he eommis® sioners of ha^Tright to grant^ ^certain served by the to make up cerc;es therein mentioned, where application for a comsuchdeficienoy was not^made the 1st January, 1798, the lots so reserved and not appropriated to make up such deficiencies before that time, being held to be unappropriated lands, and to be disposed of as such, pursuant to the acts of the legislature. A person in possession of such a lot, against whom an action of ejectment was brought by a patentee, was held not entitled to any compensation for his improvements on the land.
    THIS was an action of ejectment, for lot no. 64. in the e # town of Aurelius, in the county of Cuyuga. The cause was tried before Mr. Justice Spencer, at the Cayuga circuit, the 2d July, 1808.
    The plaintiff produced in evidence, letters patent, dated the 3d September, 1805, reciting, that by letters patent, from the people of the state of New-Tork, dated the 29th April, 1791,1,000 acres of land were granted to Benjamin Hornbeck, and four others, as tenants in common, which land had since been found to be included inland ceded by the state of New-Tork to the commonwealth of Massachusetts ; and that by the report of the attorney-general, inane me ti~ti Uctoler, 1802, each ot the patentees wa~ entitled to a patent for ~oo acres, in severalty, in restitution of an undivided part of the said 1~,000 acres of land before granted to them in common; and that Benjarnim Hornbech being deceased, they therefore granted unto the lessors, being the executors and legal representatives of Benjamin Hornbeck, deceased, 200 acres of land to be laid out in a square, as nearly as might be, in the north-west ■ corner of lot no. 64. in the township of Aurelius, in the military tract, ike.
    NEW-YORK,
    Nov. 1808.
    It was admitted that the town of Aurelius, in which the premises in question are situated, is a part of the military tract, and was erected into a town prior to the 6th of April, 1796, and that the premises in question are a part ■ of one of the four lots reserved by the 6th section of the act of the legislature, entitled, “ Ah act to appropriate the lands set apart for the use of the line of this state, lately serving in the army of the United States, and for other purposes therein mentioned,’’ passed the 8th February, 1789, to satisfy the surplus shares of non-commissioned officers npt corresponding with the division of 600 acres, and to compensate such persons as might by chance have drawn any lot or lots, the greater part of which might be covered with water.
    On the part of the defendant it was contended, that by the act of the legislature, entitled, “ An act supplementary to an act, entitled an act authorising the surveyor-general to ascertain the eastern boundary line of the lands ceded by this state to the commonwealth of Massachusetts, and for other purposes therein mentioned,” passed the 6th April, 1796, the commissioners of the land-pffic'e had no right to issue the letters patent to the lessors of the plaintiff, for the premises in question. The defendant’s counsel offered also to produce, and read in evidence, an act of the legislature, entitled “ An act for the sale of the unappropriated lands, and for other purposes,” passed the 6th April, 1803 ; and to prove further that the defendant was in possession of the premises, prior to the 6th 
      April, 1803, and had made improvements thereon, since that time, to more than the value of 25 dollars, but this evidence was objected to, and overruled by the judge.
    The jury found a verdict for the plaintiff, subject to the opinion of the court, on a case, containing the above facts, with liberty for the defendant to enter a judgment of nonsuit, in case the court should be of opinion that the plaintiff was not entitled to recover.
    
      Kellogg, for the plaintiff.
    
      Richardson, for the defendant.
   Thompson, J.

delivered the opinion of the court. The lessors of the plaintiff claim title to the premises in question, under a patent to them, bearing date the 3d September, 1805, for 200 acres of land, in lot no. 64. in the town cf Aurelius, in the military tract. It was admitted on the trial, that the premises were a part of one of the four lots reserved by the 6th section of the act of the legislature of this state, entitled “ An act to appropriate the lands set apart to the use of the troops of the line of this state, lately serving in the army of the United States, and for other purposes therein mentioned,” passed the 8th February, 1789. (Greenleaf’s ed. v. 1.p. 284.) These lots were reserved for the purpose of making up certain deficiencies designated in the act. The objection taken on the part of the defendant, to the operation of the patent, is, that the commissioners of the land-office were not authorised by law to appropriate this land, in the manner they have done by this grant. The objection does not appear to us to be well taken. By the act of the 24th of March, 1795, (Greenleaf’s ed. v. 3. p. 200.) provision is made for restitution to persons to whom lands had been granted, which fell within the tract previously ceded by this state to the commonwealth of Massachusetts. The lessors of the plaintiff are persons of this description ; and other lands in lieu thereof,were to be granted to them out of any unappropriated lands within this state. It is said, however, that the land contained in this patent was appropriated to the obj ccts mentioned in the act of February, 1789. By this act no time is limited within which the deficiencies should be ascertained. But by an act of the 11th April, 1799, (Greenleaf’s ed. v. 3. p. 351.) no compensation for any deficiency was to be made, unless application for the same made on or before the 1st January, 1798. All these reserved lots, not appropriated to make up such deficien-cies, previous to that time, would, of course, become unappropriated lands. And by an act of the 11th April, 1804, (27th sess. ch. 3.) these reserved lots are expressly declared to be unappropriated lands.

Admitting the plaintiff’s right to the land, the defendant claims compensation for the improvements, under the 8th section of the act of the 11th April, 1803. (26th sess. ch. 106.) If the commissioners of the land-office had a right to issue a patent to the lessors of the plaintiff, in the manner they have done, this is not a case coming within the act under which compensation for improvements is claimed. This provision applied only to cases where the sales were made under that act, and the improvements were to be ascertained and paid for, before the letters patent were to be issued. In the present case the patent was not issued under the authority of the act of the 6th April, 1803, and, of course, none of the provisions relative to a compensation for improvements, are applicable.

The Court are, therefore, of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.  