Brien v. Elliot's

2 Pen. & W. 49

Opinion

The opinion of the Court was-delivered by

GibsoN, C. J.

The title of the- plaintiffs under Virginia- is worthless, and they do not in fact rely on it. Their title under Pennsylvania consists of two locations of the 3d April, 1769, sur veyed by the late proprietary Deputy Surveyor, in Januaiy, 1778; .and returned by the proprietary Surveyor General, and by him .adopted as Surveybr General under the commonwealth, on the 5th March, 1782. On these surveys patents issued on the 9th of March, in the same year. If this .title be regular on its face, it ■will remain to inquire whether it be not earlier than that of Wat.son, the defence on the part of West Elliott’s heirs being abandoned.

The objections are, that the surveys were made by a proprietary -deputy after the 10th of December, -1776; that t-hey-were returned not by the proprietary deputy, but the proprietary Surveyor General; and that the Surveyor General of the commonwealth had not power, to adopt them under any of the acts of assembly .which provide for surveys by-the late proprietary officers after the ■closing of the Land Office.

Nothing is clearer than that they would have become valid by adoption, under the act of the 5th of April, 1782, had they been ■returned by the proprietary deputy instead of the proprietary Surveyor General. They-would then have been exactly-within both the letter and spirit of its provisions. In Hubley v. Vanhorne, 7 Serg. & Rawle, 190, it was .conceded that the surveys would have become valid -under this act had they -received the -sanction of the Surveyor General, but as that officer had either positively withheld i t, or never acted on the subject, it was held that the act had not been complied .with. Here the surveys were expressly ratified; and the question is whether the return required ■by the act might not be made by the proprietary Surveyor General instead of his deputy; for that John Luleens was the last Surveyor General under .the proprietary government, and the first under the commonwealth, cannot affect the validity of his acts in .the one character or, the other: these are to be considered, redden-,do singula singulis, as if they were done by distinct persons.

Why might not these surveys have been executed by the surveyor General in person? Even under the commonwealth, when the latitude of discretion allowed ;by the proprietaries -who had •absolute power over the subject, has been greatly abridged by positive law, if not entirely taken away., his act of adoption has been held to ratify a survey by one who was not the proper officer, and who consequently had acted -without authority. If then his .power be competent to supply the want of authority in the first instance, surely it must be competent to supply the formal omission of tabling and-plotting the field .work whieh constitute, not the survey, but the evidence of it. But the discretionary powers of this officer under the act of 1792 are much .greater.than those that are merely incidental to the general nature of the office. He •was to act without, .regard to form, and receive surveys o.n fhig single condition — that they should “appear to him to have been faithfully and regularly made:” that is, as I understand it, made not surreptitiously, but on the ground. And he was to receive them not only from the late deputies, but in case of their death, from their legal representatives. It must ¡therefore have been deemed of minor importance that he who had made the survey should return it. The great matter was to give assurance of a fair execution of a bona fide grant by the late proprietaries before the closing of the land office; and of this the new Surveyor General was made the arbiter, as to substance and as to form. There surely was no intention to exclude, for want of a formal return, during a period of official confusion in the course of a revolution, which ended in a change, not only of government, but also of ownership of the soil. A construction so rigid would frequently render the attempt of the legislature abortive; for there are few executors or administrators who are competent to complete the office work by draughting the surveys for return. For such a state of things was the act passed ; and its provisions are well adapted to it. The field work and tabling being returned, from which the Surveyor General is perfectly able to judge of the fairness and regularity of the survey, it is not easy to see why he might not adopt it, and cause the draught to be made in the office. To this the Surveyor General evidently thought himself competent; and the cotemporaneous construction of an experienced officer, such as was Mr. Luhens, is entitled to decisive respect.

The heirs of Watson claim under Pennsylvania, and under Virginia. As an improver under Pennsylvania, Watson might have appropriated the land in dispute, by a survey within a reasonable time. His improvement was begun in 1760,- but as a Pennsylvania settler he has had no survey at all. The plaintiffs’ surveys were made in 1778; and the owner of the locations was certainly not bound to wait beyond that period to give Watson an opportunity to exercise his right of prior appropriation, unless enough were not left to make up his quantity in another quarter: a fact that does not appear. Watson was therefore postponed by his laches; and even should his survey on the Virginia certificate be a valid designation of boundary under Pennsylvania, yet even that was posterior to the plaintiffs’ survey. Watson’s heirs are therefore driven to a defence on their Virginia entry of 1780.

Previous to the act passed by the legislature of Virginia in 1779, a title to waste lands in that state, could not be acquired by improvement. “Before that time, those lands might have been éntered and patented, notwithstanding prior settlements by others; and even this act, which considers settlers entitled to some compensation'for the risk they had.run, allows them a preference only to such settlements as at that time were waste and unatpho- treated. As to priority of settlement, it might still remain a question between persons, both of whom claim under the same sort of title; but the law of 1779 does not set up rights of this sort so as TO DEFEAT THOSE LEGALLY ACQTJIRED TINDER WARRANTS: IT APPLIES TO CONTROVERSIES BETWEEN MERE SETTLERS.” Such are the words of the president of her Court of Appeals, in delivering its opinion in Jones v. Williams, 1 Wash. Rep. 231. It is said, however, that this is predicated of prior appropriations under grants by Virginia, and not those of Pennsylvania, which were disregarded before the period of the compact. Be it so. But whatever may have been the case originally, the titles under both were, as regards the question of priority, put by the compact exactly on a footing; and are by fair construction of it, to be treated as if they had always been so. Unless they were considered to have been, in relation to each other, valid, co-existent rights from the beginning, as far as regards jurisdiction, how could there be any comparison as to dates? The very basis of the compact is an admission that the jurisdiction shall be taken to have been in common; and that claimants under the one state shall be entitled to the same protection against claimants under the other, that they would be entitled to between themselves. If then the plaintiffs’ title under Pennsylvania was perfected before Watson had'even colour of title by the laws of Virginia, will an ex post facto law, which it is conceded would not give him title by relation against a prior grantee of Virginia, be more efficient against a grantee of Pennsylvania? It is an unfair construction to say, that a Virginia title shall be judged of as it happened to stand by the laws of that state at the time of the compact. If the actual origin of a title under either state be the earlier, it is not to be overreached by a law of the other assigning to the opposing title a fictitious origin by the doctrine of relation. Granting Virginia might lawfully declare that an unauthorized improvement should be taken to have vested title from its inception, against herself, yet having recognized the grants of another state as being equally valid as her own, it is fair to say she recognized them as being attended with all the incidents of her own, against which, it appears by the judgment of her own Court, the doctrine of priority by relation never prevailed. Neither is the power of the two states to regulate questions of title to the soil, even at the expense of rights previously vested under either, now to be questioned. The compact is necessarily founded in an assumption of it. There was no constitutional limitation on either side; and the parties acting in the capacity of sovereigns, were fettered by no rule but their sense of expediency and justice. The consideration was the compromise of an international dispute, and the individuals whose titles were joeparded, had no right to call on the state from which they held, to assert their rights to the soil.

In the act of ratification by Pennsylvania it was resolved, “That although the conditions annexed by the legislature of Virginia to the ratification of the boundary line agreed to by the commissioners of Pennsylvania and Virginia on the 31st of August, 1779, may tend to COUNTENANCE some unwarrantable claims which may be made under the state of Virginia in consequence of pretended purchases or settlements pending the controversy, yet this state (Pennsylvania) determining to give to the world the most unequivocal proof of its desire to promote peace and harmony with a sister state, so necessary in this great contest with the common enemy, does agree to the conditions proposed by the state of Virginia in its resolves of the thirty-first of June last.” And this was at one time supposed to be a waiver of objection to any Virginia title that should be certified. It was doubtless an agreement to close with Virginia on her own terms, and to encounter the danger of fraud and imposition of surreptitious titles which those terms rendered more imminent; not to waive all scrutiny and submit to fraud and imposition where it might be detected. Such a construction would in all cases have made the certificate conclusive evidence of the facts stated in it; which it was held in Smith v. Brown, 1 Yeates, 516, and the lesse of Hyde v. Torrence, 2 Yeates, 445, not to be. In the latter it was declared that a Pennsylvania claimant may shew fraud, mistake, or trust.; or that the Virginia claimant was not in the country before the first of January, 177S — the point of time limited for the commencement of his settlement. To me however, the certificate seems not only inconclusive, but entitled to n,o particular favour.

The defendants also rely on the statute of limitations; but the proof is clear and full that the possession was not adverse, but by permission. I see no reason therefore .to disturb the verdict.

Huston, J.- and Ross, J. dissented. Rogers, J. took no partin the decision, being of affinity to the plaintiffs.

Judgment affirmed.