
    ALLEGHENY COUNTY,
    December Term, 1796.
    Pennsylvania v. Thomas Lemmon.
    AN inquisition of forcible entry and detainer was removed by certiorari, and tried at this term.-The The entry was laid on 8th April, 1796, into 371½ acres of land in Pitt township, in the possession of William Todd. The land is on the west side of the Allegheny river.
    On the 15th March, 1793, William Todd had, under the law of the 3d of April, 1792, obtained a warrant for 300 acres of land; and, on the 15th of April, 1796, had a survey of 371½ acres made on it. In May, 1793, he had a small cabbin built on it, ten feet long, and eight feet wide, not covered, and without a door; and he deadened about three quarters of an acre. In October, 1795, he built another cabbin, about one half or three quarters of a mile from the first, fourteen feet long and twelve feet wide, covered with slabs, but without a door; and and he deadened about half an acre. This was the evidence of possession by William Todd. In the fall of 1795 or beginning of 1796, Thomas Lemmon came on this land, to make a settlement for himself, in the terms of the act of assembly, lived some time in the last built cabbin of William Todd, and, afterwards, built one for himself, within Todd's line, and about three perches from the last mentioned cabbin.
    The evidence of the force was that Lemmon stood in the the opening of his shed or cabbin, with his gun, and refused to go off unless he were forced off.
    Brackenridge, for the prosecution.
    The survey under the warrant was a complete possession of the land. The circumstances of the Indian war rendering it impossible with safety to maintain that possession, the act of 3d April, 1792, protects his possession, as if he had asually maintained it; and renders every intrusion unlawful.-Though the two years after the warrant were expired before any settlement was made, the Indian war is an apology, and there will be two years given after the war. It is a matter of great importance to determine whether, in case of a forfeiture of a claim under a warrant, for default of settlement in two years, the state only should take advantage by issuing a new warrant; or whether any individual can take on him to make an entry, and proceed to improve and settle.
    
      3. St.L. ~
    3 St. L. 209.
    3 St. L. 212.
    
      
      2 Burns 179. 2 Bac. Abr. 558.
    
   President.

We are not now enquiring who is intitled to the land, but whether Thomas Lemmon has committed an offence, by forcibly entering on the possession of William Todd; or having peaceably entered on William Todd’s possession, forcibly detaining it.

It does not appear, that, at the time of Lemmon’s entering on this land, William Todd was in possession of it. Surveying the land, building cabbins, and leaving them unfinished and empty, is not occupying or possessing the land. It seems to have been vacant. Entering on vacant land is not a public offence. And, after such entry, there can be no forcible detainer, for there was no possession in another, at the time of the entry.

Verdict not guilty.  