
    Lessee of Pickering and others against Rutty and others.
    In Error.
    THIS was a writ of error to the Common Pleas of Luzerne county. . J
    It was an ejectment for a tract of land in the township of ¡ Claverack, in Luzerne county. In the court below the fol- j lowing facts were stated by referees, and submitted to that’ court for its opinion. !
    The lessors of the plaintiff, Timothy Pickering, Samuel Hodgdon, Duncan Ingraham, and Tench Coxe, claimed title i to the lands in question, under a lottery warrant, No. 7',! bearing date the 17th May, 1785, issued in their names out of the land office of Pennsylvania for 1000 acres of land ; the purchase money for which, amounting to 300/., was paid to the receiver general. The warrant was duly located and surveyed on the 1st July, 1785, for 1105^ acres, and allowance. The fees of survey were paid on the 14th September, 178.5, and on the 15th September, 1785, the survey was returned into the surveyor general’s office, and accepted. The defendant's Ezra Rutty, Abiel Foster, William Coolbaugh, sen., and Walter Wheelan, were in possession of all the land claimed by the plaintiff within the said survey. ,
    . The defendants claimed the land under the following certificates, issued by the commissioners appointed under the compensation law, passed the 4th April, 1799, and the several supplements thereto; viz. certificate to Ezra Rutty for lots Nos. 41, 42, 43. 46, and 47, dated January 2d, 1804, containing in the whole 460 acres and 33 perches : Certificate to the heirs and legal representatives of Jonas Smith, deceased, for No. 68, and part of Nos. 69 and 70, dated January 2d, 1804, containing 185 acres and 10 perches: Certificate to Abiel Foster, for parts of lots Nos. 69 and 70, and the whole of lot No. 71, containing in the whole 320 acres, dated the day of in the year . The court below gave judgment for the defendant.
    
    
      J < ¡ j ! i Pennsylvania claimants, ■whose tille accrued prior to the 28th March, 1787, but who did not release under the compensation act, and were thus debarred of compensation, were not deprived of their title to the land, though it was certified agreeably to law to Connecticutclaimants.
    The legislature canhot take away the property of an individual without com- , pensation»
    
      The case was argued in June, 1811, by Huston for the plaintiffs, and Hall and Duncan for tbe defendants.
    On the' 3d March, 1812, an act of assembly was passed, including the case of the plaintiffs in this suit. By this act all Pennsylvania claimants who had surveys returned before the 28th March, 1787, were permitted to sue the commonwealth for compensation, in the Common Pleas of Luzerne county.
    
      
       The following opinion was delivered by
      Cooper President This case is submitted to the court without argument, it being the intention of the parties to obtain the opinion of the Supreme Court of Pennsylvania, sitting as a court of error. The view of the subject taken by this court is as follows:
      By the compromising act of 4th April, 1799, the commissioners were only authorised to certify to the Connecticut claimants, pieces and portions of the lots on which they were settled. At this rate the Susquehanna title would not have been extinguished as to any one Connecticut lot, throughout the whole seventeen townships, unless here and there an accidental solitary instance should occur. It was manifest that this mode of proceeding would neither suit the purpose of the Pennsylvania claimant or the Connecticut claimant, each of whose tracts and possessions might be cut up into half a dozen parts, separated ultimately by intervening and conflicting claims. No purpose of public or private benefit could be answered by such a piecemeal system.
      The obvious objections to the act of April, 1799, gave rise to the supplement of 1802, by which the commissioners were authorised to certify to each claimant, fairly entitled under the rules and regulations of the Susquehanna company, not pieces or portions only, but the whole of his lot. This was in unison also with the directions of the confirming law. But the constitution declaring, that no man’s property shall be taken for the use of the public, without a just compensation, and Judge Patterson, in Vanhorne v. Dorrance, having decided, that this compensation must be made by means of the circulating medium of commerce, to wit, money, the supplementof 1802, directed, that the Pennsylvania claimants, whose lands were transferred to the Connecticut settlers, should receive a money compensation to the full amount that a jury might find; thereby avoiding the constitutional objection made to the confirming law. It is true, that this money compensation, for reasons best known to the legislature, was confined to that class of Pennsylvania claimants whose titles originated previous to the 80th December, 1782, the date of the decree of Trenton.
      
      By the supplementof the 9th April, 1807, the privileges of the acts of 1799 and 1802, were extended to all the Connecticut claimants (within the fifteen townships acknowledged by the commissioners,) who had not already applied for the benefits of them. All the Pennsylvania claimants also whose titles originated previous to the date of the confirming law, March 28th, 1787, were permitted to release their titles to the commonwealth, and the privileges of the original act of 1799, and the supplements thereto, were extended to this class of land-owners, hut no provision was made for allowing a just compensation in money, to the holders of Pennsylvania titles, originating between the date of the decree of Trenton and the date of the confirming law, who should neglect or refuse to release. The law, therefore, has prohibited them from recovering against the certificate of a Connecticut claimant, but has given them no right of action against the state in return. Nor can such a right be raised by mere inference and implication; it must be expressly given; and the manner of exercising it must be specially designated. I conceive, however, that this is a mere oversight in draughting the act, and forms a casus omissus only, which on application, the legislature will embrace in conformity with the constitutional provisions of the supplement of 1802.
      Again. By the supplement of 1802, the right of ascertaining the money compensation was committed to a jury, under the directions of the judges sitting at a Circuit Court of the Supreme Court. That jurisdiction is now abolished. The.Circuit Courts are done away. No other tribunal is substituted to take cognisance of this class of cases, nor can any such jurisdiction be assumed by inference or implication, by any court now existing. The jurisdiction itself, arid the mode of exercising it must be expressly given and specially designated. This also forms another casus omissus, which no doubt the legislature, on application, will not hesitate to supply.
      On consideration of these cireumstauces, the privileges of the Connecticut claim* ants under the former laws of 1799 and 1802, being fully recognised hy the law of 1807, the certificates of the defendants must be considered as a full protection of their claim to the lands in question, under the 9th section of the supplement of 1802; nor can the plaintiff, under that section, have any right of recpvery against the Connecticut certificate.
      It is true, that this is a case of great hardship on the Pennsylvania claimants, whose right to bring suit against the state is omitted to be recognised by the law of 1807: and in whose favour no tribunal at present exists to try such a suit. But the best remedy in this case will be an application to the legislature, to remedy the defects above stated, which are obviously omissions and no more.
    
   TilghmAn C. J.

The plaintiffs claim under a lottery warrant, bearing date 17th May, 1785, on which a survey was made July 1st, 1785) and returned into the office of th,e surveyor general, September 15th, 1785. The defendants, whose original tittle was derived from the state of Connecticut, claim.under certificates issued by the commissioners appointed by virtue of the Compensation Act of Pennsylvania, passed 4th April, 1799, and the several supplements thereto. These certificates bear date in the year, 1804. By the compensation act, the commissioners were not authorised to issue a certificate to any Connecticut claimant, except for land which had been released by a Pennsylvania claimant, nor could any Pennyslvania claimant release and obtain a compensation from the commonwealth, except his title had accrued prior to the decree of Trenton, (30th December, 1782.) These restrictions, having been found inconvenient, have been removed by several acts supplementary to the compensation law. By the act of 6th April, 1802, section 9, the commissioners were directed to issue certificates to Connecticut claimants, who should establish' their titles in the manner prescribed by the act of 4th April, 1799, for the whole of each tract claimed by them, whether released to the commonwealth by the Pennsylvania claimant, or not; and the Pennsylvania claimant, thus deprived of his land, was entitled to an action against the commonwealth, for the recovery of a just compensation, to be assessed by a jury. By the act of 9th April, 1807, further time was given to Connecticut claimants, who had neglected to enter their claims, and the benefit of the former laws was extended to lands not occupied by any settler, prior to the decree of Trenton. Pennsylvania claimants also, whose titles had accrued at any. time prior to the 28th March, 1787, were admitted to a compensation from, the commonwealth, provided they executed releases, and transmitted the same to the secretary of the land office by the first day of August, 1807; but there is no provision for compensation, to those who did not release before that day. The plaintiffs, if they had thought proper, might have released, and received compensation under this last act. But they did not. What then is the consequence ? Are they to be deprived of their lands without compensation? We cannot suppose, that such was the intent of the legislature. If it had been intended to transfer the title from the Pennsylvania to the Connecticut claimant at all events, provision would have been made for' compensation at all events, as was done by the act of 6th April, 1802; because even the legislative power has its bounds. The people have not entrusted their representatives with authority to commit an act of such wanton injustice, as to take the property of an individual without compensation. But they have given them power to do every thing which the common good requires; that is to say, to take away property in cases of necessity, of which the legislature is to judge, making reasonable compensation. The sentiments of this Court were expressed on this point, in the case of Enslin, &c. v. Bowman, &c. Executors of Stewart, (Sunbury, June, 1814). So that I by no means concur with the opinion of the Court of Common Pleas, that the plaintiffs were barred of their recovery, because the act of assembly took away their title, and that the not making provision for compensation was an omission which might be supplied by a future law. But since the time when judgment was given for the defendants by the Court of Common Pleas, an act of assembly has been passed, (3d March, 1812,) by which all persons claiming under a Pennsylvania title, by patent or location, or a warrant on which a survey has been returned prior to the 28th March, 1787, and who have not released to the commonwealth, and whose lands have been surveyed, valued, and certified to a . Connecticut claimant under the act of 6th April, 1802, or 9th April, 1807, may institute suits against the commonwealth, and recover a just compensation. The case of the plaintiffs falls within this last act. Therefore, although the judgment of the Court of Common Pleas was erroneous, yet, at the present moment, the plaintiffs ought not to recover the land, because, upon a view of the record and the last act of assembly, it appears to this Court, that the defendants are protected in their possession. I am therefore of opinion, that our judgment should go no farther than to reverse the judgment of the Court of Common Pleas.

Yeates J.

drew up an opinion, which has been mislaid, and the reporter is unable to say, whether he agreed with the other judges or not.

Brackenridge J, concurred with the Chief Justice.

. Judgment reversed. 
      
       6 Binn. 462.
     