
    Moore against Shaver.
    Saturday, July 8.
    On a loose warrant or application, even where it is so vague, that it cannot he referred to any .particular part of the State, the title vests at the time a survey on it is made on the ground. It is only in the case of a shifted location, that the commencement of the title is postponed until the acceptance of the survey.
    In the case of a shifted warrant, actual notice is necessary-hut if the warrant might, or might not, have been laid on the ground, constructive notice is sufficient.
    In Error.
    ON a writ of error to the Court of Common Pleas of Union county, it appeared, that the land for which this ejectment was brought, was claimed by the plaintiff in error, who was also plaintiff below, on a warrant dated the 17th November, 1785, to William Cochran, including his improvement ; bounded on the south by land of F. Marryather, on the west by land of Robert. Shaver, on the east of a barren ridge on Middle creek, in Penn’s township ; interest to commence from the 1st of November, 1755. On this warrant, a survey was made on the 7th of April, 1790, of 41 Sé acres, by F. Evans, the deputy surveyor, for William Cochrane, to whom a patent was granted on the 24th of November, 1796. Cochrane’s title was regularly deduced to John Moore, the plaintiff.
    The defendant took defence for 192 acres of the land claimed by the plaintiff, and in support of his title, gave in evidence, an application, numbered 336, in the name of William Foster, dated the 1st of April, 1766, for 300 acres, including two licks; beginning about Jive rods below them, on a creek. On this application, Foster, obtained a survey on the 17th October, 1766, of 192 acres 83 perches, situate on the heads of Middle creek, by William MlClay, the deputy surveyor. On the 29th of September, 1795, a warrant of acceptance issued, and on the 15th of October, following, a patent was granted to John F. Mifflin, from whom the defendant derived his title.
    In addition to the title already stated, the plaintiff endeavoured to shew, that he had an improvement on the land in controversy, as early as the year 1755, the period designated in his warrant for the payment of interest to commence. This, the Court left, as a matter of fact to the jury, instructing them, at the same time, that if they were satisfied the plaintiff had an improvement on the land, prior to Foster’s survey, on the 17th of October, 1766, his title should be preferred to that of the defendant; but if they should think, he had no improvement, 1 before the year 1776, when one was commenced by a certain Moses Collins, to which opinion the Court inclined, the defendant’s title was the best.
    The counsel for the plaintiff, also contended before the Court of Common Pleas, that Foster’s application, on which the defendant rested his claim, conferred no title, until the return of survey, which was subsequent to the warrant and survey on which his title was founded. On this subject, the Court delivered their opinion, to the following effect.
    “ It becomes necessary for the Court to describe to the jury, the different kinds of warrants and applications. Where a warrant or application is accurately descriptive of the land intended to be taken, the title commences from the date of such warrant or application, provided a survey be made within a reasonable time ; but if the warrant or application be not descriptive, the title commences from the time of survey; and if it be a removed warrant or application, from the time of the return of survey, and acceptance into the surveyor general’s office. The reason of this is obvious, for where the warrant or application is descriptive, the land sold by the one, and purchased by the other, is known, and the bargain may be considered as certain, and no person can be deceived, who uses proper diligence in making searches in the land office. But where a warrant or application, is not descriptive of any land, it confers on the owner thereof, merely a right to have it surveyed upon any vacant land, and the grant being general, it is not reduced to a certainty, before a survey is made. But a removed warrant or application, describes a particular tract of land, and the owner of the warrant or application, finding the land he applied for, is claimed by some other person, undertakes to have his warrant or application, surveyed upon other vacant land, without any previous consent of the proprietaries or State. In this case, the contract cannot be considered as consummated before the return of the survey, and the acceptance of it in the surveyor general’s office, before which time, he has no assent of the proprietaries, or State, that he shall have the land which he has procured to be surveyed upon his application or warrant, except as against those who had notice of his survey, previous to the com* mencement of their title to the same land. In this case, the defendant’s survey is previous to the date of the plaintiff’s warrant, and previous to any proof of his improvement. The first question then for the jury is, whether the plaintiff’s warrant is a removed one? If so, his title only commencing from the time of the return, may be later than that of the defendant, even if the defendant’s application should be considered a removed one, as the plaintiff’s patent is granted on the 24th November, 1796, and the defendant has a warrant of acceptance, dated the 29th September, 1795> and a patent, dated the 15th of October, 1795. But if the jury should be of opinion, from the evidence, that the defendant’s is a removed application, and that the plaintiff’s is reasonably descriptive of the land, then the title of the plaintiff should be preferred, as his warrant and survey would appear to be of an earlier date than the return of the defendant’s survey, or at least, than any evidence of return.”
    In answer to one of several questions, on which the Court were particularly requested by the counsel for the plaintiff, to instruct the jury, the following opinion was given.
    
      “■ If the jury believe, that the defendant’s application is a loose application, and not removed, after survey, Foster became entitled to the land, and the Commonwealth had no right to grant it to another.”
    The verdict being for the defendant, the opinion of the Court below, came up for revision, on a writ of error.
    
      Greenough, for the plaintiff in error,
    argued, that the application under which the defendant claimed, was so loose, vague, and uncertain, that no one could know in what district of country the land lay, or to what deputy surveyor to apply for information, and that therefore, no title under it, could vest, until the return of survey. Until then, it was impossible, with the utmost diligence, to connect the survey on the ground, with the application. It differed from all the cases of loose locations, hitherto decided, in this essential feature ; that in all of them, some general scope of country was described, some known object referred to, by which the locality of the application, might be, at least imperfectly, fixed. But in the present instance, there was no such guide ; there was no section of country designated, and it was impossible to tell, from the language of the application, in what part of the State the land was to be found. He referred to Jf‘ Kinney v. Houser.
      
    
    
      Hall, for the defendant in error,
    admitted, that this was a loose application, but said, that in relation to such applications, it had been decided in Lauman v. Thomas,
      
       that the title vested at the time the survey was made upon the ground; that the application in that case, was as indescriptive as in this, and it was impossible to distinguish one case from the other; and that therefore, as the survey was made on the defendant’s application, in October, 1766, and the plaintiff’s warrant did not bear date, until the 17th of November, 1785, the title of the former was indisputably the best.
    
      
       2 Sm. L. 190.
    
    
      
       4 Binn. 51.
    
   Gibson J.,

delivered the opinion of the Court.

It is impossible to distinguish this case from the Lessee of Lauman v. Thomas. All the distinctions respecting the different kinds of warrants or locations, and thh time of vesting the title, are there well taken, and put on their true grounds. In no case, but that of a shifted right, is the commencement of the title postponed till acceptance of the survey ; and for this reason, that the contract having, by its terms, attached to a specific object, cannot be altered by the volition of one party to it, so as to be applied to a different object. The acceptance of a survey of land, not embraced in the original contract, is a new bargain, that canpot have a retroactive operation against a person deriving right from a prior appropriation. It is, indeed, laid down in Kyle v. White, 1 Binn. 249, that, in the case of a shifted right, the title shall vest from the time of the survey, as against a person having actual notice of it; which is irreconcileable with the doctrine of the contract being incomplete, till ratified by the grantor, as that does not involve the materiality of notice at all. I apprehend, the interference of a person conusant of the intention of the party to appropriate other land under his shifted right, was originally considered a fraud, and sufficient, on that ground alone, to postpone him : yet in The Lessee of Evans v. Nargong, 2 Binn. 55, it was held, that no private intention of a party, designing to appropriate a particular spot, should prevent the proprietaries from granting it to any one that chose to apply for it. But I apprehend, the true reason why the title on a shifted right, commences at the survey, against a party having actual notice, is a long uninterrupted usage, to disturb which, for any abstract reason, would, at the present day, be attended with disastrous consequences. But as to the other two classes of cases, there is no difficulty. Where the warrant or location is strictly or reasonably descriptive, the subject matter of the grant, being ascertained by the terms of the contract, the interest vests presently: but where the office right is loose, indescriptive, or vague, (for each of these terms is sometimes used,) the contract, embracing no particular spot or definite portion of land, can vest no interest, until the subject of the grant is ascertained ; but when that is done, the contract, which was before indefinite, is reduced to certainty, and the interest, therefore, vests from the survey. The three classes I have mentioned, comprehend every kind of right. But a distinction is attempted between a warrant, in which the land is so far described by natural objects, well known, as to fix it within a compass of three or four miles, and a warrant or application like the present, in which there is no designation by any known object, and in which, the locality of the grant cannot be referred to any particular part of the State; and this, on the ground, that where the description in the warrant is altogether vague, the survey on the ground is not notice, as it cannot, on enquiry, be traced to any particular office right; and that, therefore, until it is actually attached to one, by return into office, it can afford no information, that the survey on the ground, was made under any authority. A warrant or location, however, either describes the land, or it does not; and if it be indescriptive, it is so, to all intents and purposes ; and the degree of imperfect information it may afford, as to the district of country in which the land is intended to be surveyed, is, for the present purpose, immaterial. A survey on the ground, is always notice, where it is sufficient to put the party on an enquiry, which would, if properly pursued, lead to a full knowledge of the office right, under which it was made. It is almost impossible, that any one can be altogether ignorant of the matter, where there has, in fact, been an adverse survey of tbe spot he designs to appropriate ; in which case, recourse should be had to the deputy surveyor of the district, whose office would always afford the means of information. The difference between a shifted location, and one like the present, seems to be this : in the case of the first, a party is not bound to suspect, that the grant has been located against the express letter of its terms, and being, therefore, not bound to enquire about a matter so much out of the usual course, nothing short of actual notice will affect him; but where the survey on the ground would lead him to a warrant, which might, or might not, have been laid on the land, he is bound to go the utmost length, in search of further information ; and shall therefore be affected by constructive notice. Here, there could have been no surprise, if proper diligence had been pursued; and we therefore think the judgment should be affirmed.

Duncan J., who had been concerned as counsel in the cause, took no part in the decision.

Judgment affirmed.  