prior title by warrant, or location, or prior settlement. An entry in such case would be a trespass on the former owner, not sanctioned by any law or usage; the doctrine being well established, that no actual settlement, made after an adverse survey, can confer a title, or be received in evidence to affect the right.(1) By this is not meant the case of an abandonment by a former grantee or settler, by which he has forfeited his right; nor when he has lost it by laches or neglect in pursuing his claim. For in such case, the land may be considered as again thrown back into the mass of vacant territory, and liable to all its incidents. Lands out of the limits of the purchases from the Indians could not be acquired by settlement, except when, under peculiar circumstances, a pre-emption right was considered as belonging to the settler, by reason of promises made to him under the authority of the proprietary or his officers. 2. What acts are necessary to constitute an improvement or settlement. After the revolution, these acts were defined by the legislature, by the law of 1786;(2) and they seem to have been essentially the same under the proprieta (1) 2 Sm. Laws 180. 11 Serg. & Rawle 264. ries: though, at one time, notions somewhat vague existed as to the meaning of an improvement.(1) 1st. The person must have gone on the land with intent to make immediate settlement, and have personally resided there. He could not acquire this title by acts done by him on the land whilst he resided elsewhere. The policy under which this species of title was supported, was to encourage the poorer classes, who were not able to pay for land, and were yet willing to make a tract their home, and bestow the labour of themselves and families. The increased value of the soil thus produced would furnish a security for the principal and interest of the purchasemoney. It would have frustrated this policy to allow one to hold land as a settler, who resided elsewhere, and would enable him to monopolize many parcels of territory, without conferring the benefits of his personal industry.(2) This did not, however, preclude a person from acquiring such title by placing a tenant on the land, who resided there in lieu of the owner. So a man's children, if of sufficient age to reside on and cultivate the soil, might be actual settlers.(3) And though the general rule is, that the work of a minor son is for the father's use, yet if the father permits him to settle a tract for himself, it enures to the use of the son.(4) (1) 3 Binn. 188. 4 Binn. 222. (3) 2 Sm. Laws 237, 246. (4) 4 Serg. & Rawle 211. 4 Yeates 534. 2d. The actual residence must have been continued, unless it has failed after its commencement from causes sufficient to excuse it: such as expulsion by a public enemy, or well founded danger of their attack, or force used by an adverse claimant. In these cases if the party has persevered in his claim, and done all that was reasonably in his power to effect a residence whenever opportunity should offer, showing a clear and manifest intent to make it a place of residence and means of maintaining a family, his title remains. (1) So there may be a temporary absence by going into the service of his country during war, or from duty to his family; yet if there is the animus revertendi, the right is not lost by it. On the other hand, occasional acts done on the ground, such as deadening timber, sowing a little grain, &c., where the absence during intervals is not accounted for, do not confer this title. (2) And where a claim by settlement comes in collision with an office right, it must clearly have subsisted as such before the commencement of the latter. If, for instance, a party two days before the date of another's warrant had begun to cut logs on the ground, it would not avail him as a settler.(3) A different rule would render an office title insecure. A mere occupancy or exercise of ownership on lands, without the residence required, vests no right whatever: on the contrary, the occupier is a trespasser (1) 2 Sm. Laws 237. (2) Ibid. 236, 237. See Bixler v. Baker, 4 Binn. 213, on the lands of the commonwealth, and may be turned out of possession by one acquiring an office right, and that although such trespasser has been more than twenty-one years in possession. For the statute of limitations does not run against the commonwealth.(1) This sometimes happens when the owner and occupier of a tract adjoining vacant land clears over his lines into it, or cuts down timber on it, or uses it as his own for other purposes. The act of 3d April 1792 prescribed the duration of the settlement, the extent of the improvement, and the period within which it should be made, but did not define its nature. For this we must look to the act of 1786.(2) The act of 5th September 1794 made settlement and residence a preliminary condition to the grant of any lands whatever by the commonwealth, and required in addition, that grain should be raised. This act continued in force till it was repealed partly on the 28th March 1814, and the residue on the 10th March 1817.(3) The reasons for its enactment are variously stated.(4) The fact that the requisites were complied with, was required to be proved where an adverse title of subsequent date came in collision with it; the issuing the warrant being only prima facie evidence of it: but relief on this score was given by an act passed on the 7th February 1812.(5) (1) 3 Penn. Rep. 428. (3) Ante 97. (5) 2 Penn. Rep. 171. (2) 4 Serg. & Rawle 501. (4) Bixler v. Baker, 4 Binn. 213. 3. What quantity of land it authorized, and how ascertained. To what extent of unimproved circumjacent land a settler is to be considered as acquiring an equitable title, was one question in the case of Campbell v. Kid, when this kind of right first became, so far as we have a reported case, the subject of judicial investigation. The court said, it was certain that a right to improve lands would not carry an indefinite claim to adjacent unimproved lands, but seemed uncertain, at first, whether the quantity should be ascertained by a jury, or whether such amount of wood land should be determined by the proprietary officers, and be solely judged of by them. The settler had a verdict, and the court ordered that his counsel should have leave to move the court at the day in bank to give evidence (if they thought it regular and proper) of the practice of the country and the land office, with respect to the quantum or proportion of adjacent unimproved lands, properly claimable or grantable under an improvement right. It was afterwards agreed, that the settler had a right to three hundred acres and allowance, under the proprietaries, if he chose to take it: that being the amount to which any one person was limited in an office right. He might, however, limit himself to less if he chose.(1) And if he has had a survey made by the deputy surveyor (as he ought to do), or has taken out a warrant, or marked his boundaries, even unofficially, or made consentable lines with a (1) 2 Sm. Laws 172. Ante 137. |