
    Lessee of Hazard against Lowry.
    
      Pittsburg, Saturday, September 6th.
    The proviso in the ninth section of the act of 3d April 3792, which excuses a settlement in case of prevention by the enemy, also excuses a survey. Two years after the pacification by General Wayne’s treaty is a reasonable time, for making a settlement ■which has been prevented by the enemy.
    THIS was an ejectment for land lying north and west of the; rivers Ohio and Allegheny and Concwango creek. The warrantto the lessor of the plaintiffbore date the 13th of April 1 v'92, and called for400 acres “ adjoining land this day granted to Walter “ StewartAt the time the warrant was taken out, and. until the treaty of General Wayne, which was made at Meadvilk on the 3d of August 1795, and ratified on 23d of December following, there was an Indian war on the frontiers of Pennsylvania; and the frequent irruptions of the enemy into the quarter of the country to which the warrant applied, haVe been repeatedly recognised by the courts of this state as excusing during that period the settlement required by the act of 3d April 1792; indeed until the spring of 1796 there was hardly an instance of any person, except a few intrepid and perhaps rash adventurers, who attempted to make a footing in that country. On the 17th June 1794, more than two years after the date of the warrant, a survey was made upon it by Reese, the deputy surveyor of the district, according to the description in the warrant “ adjoin- “ ing Walter Stewart;” but no entry was made at that time by the lessor of the plaintiff, or by any one under him, with a view to settlement. The defendant entered on the land in July 1795; and the plaintiff brought his ejectment to September term 1797, more than a year and a day after Gen. Wayne's treaty, but less than two years. The demise was laid as of the 1st October 1796.
    The whole case turned upon the construction of the 9th section of the act of the 3d April 1792, which is in the following terms. “ No warrant or survey to be issued or made in pursu- “ ancc of this act for lands lying north and west of the rivers Ohio “ and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has prior “ to the date of such warrant made or caused to be made, or “ shall within the space of ttvo years next after the date of the “ same make or caúsete be made an actual settlement thereon, “ by clearing, fencing and cultivating at least two acres for “ every hundred acres contained in one survey, erecting thereon “ a messuage for the habitation of man, and r<- siding or causing a family to reside thereon for the space of five years next fol
      -lowing his first settling the same, if he or she shall so long “ live; and in default of such actual settlement and residence, it" “ shall and .may be lawful to and for this Commonwealth to “ issue new warrants to other actual settlers for the said lands “ or any part thereof, reciting the original warrants, and that “ actual settlements and residence have not been made in pur- “ suance thereof; and so as often as defaults shall be made, for “ the time and in the manner aforesaid; which new grants shall “ be under and subject to all and every the regulations contain- “ ed in this act. Provided, that if any such actual settler, or any “ grantee in any such original or succeeding warrant, shall by “ force of arms of the enemies of the United Stales be prevented “ from making such actual settlement, or be driven therefrom, “ and shall persist in his endeavours to make such actual settle- “ ment as aforesaid, then in either case, he and his heirs shall “ be entitled to have and to hold the said lands, in- the same “ manner as if the actual settlement had been made and “ continued.”
    At the trial of the cause in November 1802 in the Circuit Court of Allegheny county, a verdict was taken for the plaintiff, subject to the opinion of the court upon three points reserved; and which were now the ground of appeal, as the decision of the court below was in favour of the plaintiff upon all of them. 1. Whether, as no survey was made upon the plaintiff’s warrant within two years next after the date, any survey thereon made afterwards could vest a title in the warrantee. 2. Whether any title vests in a warrantee under the act of 3d April 1792, unless he has made an actual settlement before the date of the warrant, or within two years next afterwards. 3. Whether, supposing the plaintiff to have been prevented during the two years after the date of his warrant from making an actual settlement, he had proceeded to make it within a reasonable time aft^r the prevention ceased.
    A.. W. Foster for the defendant
    contended on the first point, that as the warrant in this case was not of a nature to ascertain the land without a survey, and as the ninth section of the act of '3d April 1792 required, in order to vest a title, that within two-years from the date of the warrant certain acts should be performed ppon or with reference to a specific ascertained tract of land, it followed that there never had been even an inception of title in the plaintiff. The warrantee did not know within the two years where his land was; he of course had it not in his power to enter or to take any step with reference to it. In fact he did not lay claim to any land until the time had expired. A special warrant, which describes the land, attaches from the time it is entered with the deputy surveyor; but a general warrant like this, if it is of an) avail under the act of 1792 which in its third section demands aparticular description of the lands in every application, attaches only from the time of survey, unless a special entry descriptive of the land is made at the time of delivery to the surveyor. Whatever may have been the situation of the country, the plaintiff must make out his title according to the ninth section. The proviso at most dispenses with actual settlement only in the event of a prevention by the enemies of the United States; but the plaintiff never had a survey which fixed a particular body of land whereon he had a right to enter and settle; and it is therefore absurd to say that he was prevented by the enemy from settling, or that there ever was a tract of land which he'could persist in his endeavours to settle. A survey is a condition precedent to the operation of the proviso; for until that is made, there is no object for settlement, prevention, and persistence.
    The defendant entered then, after the plaintiff forfeited his right. He became an actual settler, as he might well be without a vacating warrant; for the 9th section is explicit, that in case of forfeiture new warrants shall issue to other actual settlers, which implies a settlement before the new warrant is issued; and having entered upon a right adverse to the plaintiff, his settlement cannot enure to the plaintiff’s use.
    The second point was not pressed.
    On the third point it was contended that the decision of the Supreme Court of the United States in Heidekoper's Lessee v. Douglass 
      
       was not binding upon the courts of this state, as it was not pronounced in a cause exclusively of Federal jurisdiction; the point was therefore to be settled by die decisions in Pennsylvania, which established' the necessity of an actual settlement after the prevention had ceased. The question in the present instance was as to the time. All apprehension of danger cease, d at least as early as the ratification of General Wayne's treaty in December 1795, and more than a year and a half elapseel before the plaintiff made an attempt to proceed under his survey. The common law has limited a year and a day to be a ' legal and convenient time for a great variety of purposes, especially in the case of continual claim, to which this renewal of settlement is in many respects analogous. Co. Litt. 254. b. sec. 422, — 3. Runn. on Eject. 143.; and as a general rule to which this and all other cases must bend, it would manifestly interfere with the main design of the legislature to settle this frontier country, if a longer time were allowed. The actual settler is entitled to a credit for every day he has resided on the tract, against the five years’ residence required by the law; and as in many cases an actual settlement was commenced before prevention, he should be allowed as a general rule only a medium of the whole time for completing his actual settlement after the prevention was at an end.
    
      Ross for the plaintiff.
    The first point states nothing in relation to the entry of the warrant with the deputy surveyor; but submits the naked question, whether the survey, not having been made within two years, vested any title in the plaintiff; or in other words, inasmuch as the proviso dispenses completely with settlement where it is prevented by the enemy, whether it does not also for the same cause dispense with the survey. The question answers itself. The warrantee is excused from entering to settle, because it would be monstrous to insist upon it at the hazard of his life; and can it be argued that although the danger was precisely the same, there should nevertheless be an entry to survey? Besides, the plaintiff could not compel a survey. It could be made only by the public officer; and both the courts of this state and of the union have held that he' is excusable in refusing to survey flagrante bello. The argument therefore proceeds upon a double injustice to the warrantee, by making him suffer for not causing that to be done which the spirit of the proviso excuses, and then by imputing to him the omission of a public officer whom the law in this very particular justifies. The endeavour of the plaintiff is, however, very obvious from the survey having been made in June 1794, during the period of hostility; and as the defendant entered in 1795, the kind of warrant taken by the plaintiff is legalized from the time of survey, by the act of 22d April 1794. 3 St. Lotus 581.
    
      The second point has been settled by this court at Sunbury, It cannot indeed be seriously urged that an actual settlement must be made within the two years, without rejecting almost the only plain meaning which the proviso affords. The acts of Assembly for raising troops, prove incontestibly a prevention by the enemy; and nothing more is necessary to postpone the effect of the whole enacting clause, even from the moment the warrant issues.
    On the third point there are two positions for the plaintiff, one as it respects the defendant, the Other the Commonwealth. As it respects the defendant,he was a wrong doe,r; he entered before the treaty, while most clearly the plaintiff’s right was in force; and he shall never be permitted to object to our claim, a defect of which, if it exists, he himself was the cause. As it respects the commonwealth, even the common law rule is sufficient; for our demise is laid on the 1st October 1796; not a year after the ratification of the treaty, which is the point of time at which a settlement might have been commenced with safety. Morris's Lessee v. Neighman. 
      
       But the rule which has been adopted at Sunbury, and which is the only rational rule that can be adopted upon the subject is this, that as the 9th section allows two years for clearing, fencing, building &c. and as the enemy prevented all settlement until the ratification of the treaty, two years after that date is a reasonable time for performing the same duty.
    
      
      
         4 Dall. 392.
    
    
      
       4 Dall. 209.
    
   Tilghman, C. J.

delivered the opinion of the court. This cause comes before the Court upon an appeal from the Circuit Court of Allegheny county. The ejectment was brought to September 1797, and tried November 1802, when a verdict was taken for the plaintiff, by agreement, subject to the opinion of the Court upon the points to be reserved. These points are specified in the record, and are now the subject of our consideration. The counsel for the defendant has argued the cause on very extensive grounds, and raised many points not necessary to be determined in deciding the questions before us. The weight of business resting upon this court, will mak ■ us cautious how we express our opinions on matters foreign from the case before us. I shall therefore confine myself to the reserved points stated on the record, without intimating any opinion on any other question.

The first and second points may be considered under one view. They, as well as the third point, arise out of the act of 3d April 1792, and principally out of the 9th section of that act.

Although this section is expressed with such obscurity as to have occasioned great diversity of opinion among men of the first abilities, yet there are some points concerning which there can be little doubt. One of these points is, that if the settlement required by law is prevented by force of arms of the enemies of the United States, the interest of the grantee does not revert to the commonwealth, although the settlement is not made within two years from the date of the warrant. Now in the case before us, the warrant bears date the 13th April 1792, and it is notorious, and not denied by the defendant, that for more than two years from that time there was open war with the Indians, which rendered it dangerous to attempt a settlement of the land in dispute. It may be safely affirmed, from the public acts of the commonwealth in granting money and raising troops for the protection of the country, that this state of danger- existed until the pacification by General Waynes treaty with the Indians. If the danger arising from this war excused the warrantee from making a settlement, so did it likewise excuse the deputy sur > veyor from surveying the land. The counsel for the defendant contends, that inasmuch as the warrant does not describe the land except as “ adjoining a tract granted to Walter Stewart,” which had not been surveyed, the warrantee could not know where it lay until it was surveyed, and of consequence he could not be prevented from settling what he had no right to enter on. But this argument has more of refinement than of sqlidity. When the warrantee paid his money and took out his warrant, his title commenced; he obtained a right to reduce the land to a certainty by survey, and he shall not be deprived of that right by the event of war. There is nothing in the act which authorizes such a position. On the contrary, the proviso in the 9th section which excuses the settlement, does virtually excuse the survey.

The third point for our decision supposes that the warrantee was prevented by the enemy from making a settlement for two years from the date of the warrant; but the defendant contends that a settlement was not made within a reasonable time after l’ne prevention ceased. It was decided by my three brethren at the special Court at Sunbury, when I had not the honour cf a Eeat CI) this bench, that a reasonable time for such sett^einent should be allowed; and to that opinion I subscribe. The question then is, what is that reasonable time? The law has not fixed it. .But as two years are allowed for building, clearing, and fencing, in case the country had been in a state of peace, it seems most consonant to the spirit of the law that where war existed from the date of the warrant for two succeeding years, not less than two years should be allowed from the pacification by the treaty by which the war was concluded. I understand this to have been the opinion of the Judges of this court, and I see nothing which should induce us to depart from it. The defendant then, having entered during the time that the lessor of the plaintiff had a right to hold the land for the purpose of making a settlement, was a wrong doer, and subject to be removed either by an entry or by ejectment. It follows that the plaintiff was entitled to judgment in the Circuit Court, and that judgment must now be affirmed.

Judgment affirmed. 
      
      
         4 Doll. 237.
     