The opinion of the Court was delivered by
Kennedy, J.
It is unnecessary to pass an opinion upon the bills of exception to the admission of evidence, as no injury or detriment whatever could have accrued to the plaintiff from it. For, according to the instruction given by the court to the jury, it had no concern with, or relation to the ground on which the court charged erroneously against him. The court expressly told the jury that the plaintiff’s title to the land in question was originally the best, and was so still, unless the jury should be of opinion that it had been abandoned by him, or those through whom he claimed. So that the evidence admitted and excepted to, having no relation or bearing whatever upon the fact or notion of abandonment, could not have prejudiced the plaintiff in the slightest possible degree.
But the instruction of the court to the jury in regard to the plaintiff’s having abandoned his prior and better right to the land, [195]*195is what we think he has just ground to complain of; and that the court erred in leaving it to the jury to say whether, under the circumstances and facts given in evidence, the plaintiff, or those from whom he derived his claim to the land in question, had not abandoned their right and title to it. The title under which the plaintiff' claimed the land, consisted of warrants obtained from the Land Office in August 1793, upon which the purchase money was paid to the Commonwealth at the time, surveys made thereon in the next succeeding month, embracing the land in dispute, which were returned into the Land Office, and accepted there in the month of February of the following year, whereby the contract for the sale and purchase of all the land included within the surveys, of which the land in controversy formed a part, became complete and binding upon the warrantees, as well as the Commonwealth; so that neither the one or the other, without mutual consent, could annul or rescind or undo what had been done in pursuance of it, not even so as to change or shift the warrants to any other land. The Commonwealth became bound to perfect the title to the warrantees for the land so surveyed, upon their paying the patenting fees and the purchase money for the excess of land contained in the surveys, beyond the quantity mentioned in the warrants. And the warrantees, on the other hand, became bound to pay for such excess and the patenting fees, which the Commonwealth had the power of enforcing whenever she pleased. Until the survey made in pursuance of a warrant shall have been returned into the Land Office, the warrantee may change the location of it, by shifting and having it made upon other land remaining unappropriated, and thus abandon his first survey, and all claim to the land embraced within it. Having such right to change the location of his survey at any time before it shall have been returned by the deputy-surveyor, it would seem to be not only reasonable, but necessary, on grounds of expediency and good policy, that he should be required to pay the deputy-surveyor, who has made the survey, his fees for so doing, within a reasonable time, so as to make it the duty of the latter to return the survey into the surveyor-general’s office; or otherwise he, although he may have no idea of abandoning his survey or claim to the land included in it, may lose it, by even a junior warrantee getting it surveyed and returned under his warrant. For it is manifest that it would be unjust, as regards the interest of the Commonwealth, that the owner of the senior warrant, or warrants under which the first survey has been made, should be permitted, in such case, by withholding the return of his survey for any unreasonable length of time, to keep the Commonwealth in a state of suspense as to whether he will take the land actually surveyed under his warrant or not; and finally, if he concludes not to take it, and has a second survey made on and returned for other unappropriated land, he may possibly prevent the Commonwealth from selling the land embraced in the first survey, or [196]*196at least cause great delay in her doing so. In order, therefore, that the Commonwealth may not be prejudiced by the neglect of the party, in such case, to have his survey returned within a reasonable time, it is right upon principles of sound policy, as also those of justice, that, after such reasonable time has elapsed, without any return of the survey having been made, owing to the neglect or will of the party for whom it was made, the Commonwealth should have the right to dispose of the land again to the first applicant, or that any prior or subsequent warrantee should be at liberty to appropriate it, by having a survey made upon it under his warrant; and that the party for whom the first survey was made shall be presumed to have abandoned it, whether he actually intended to do so or not. That such presumption is founded in reason, cannot, I think, be denied. But it is likewise founded upon what may be considered natural, or at least cannot be said to be unnatural, and may be consistent with ordinary motives of human action. For the party may have discovered unappropriated land lying elsewhere, preferable, in his estimation, to that included in his survey, which he has it in his power to secure as long as his survey remains unreturned. But after having returned his survey, he is bound by it, and cannot take other land, so that all possible ground for presumption of abandonment is out of the question, for he cannot then abandon his right to the land without abandoning his right also to the warrant, and losing the purchase money which he has paid the Commonwealth for it. That he would do this, cannot well be presumed, because it is contrary to the common incentives which generally govern and influence all mankind, that any one should be so regardless of his pecuniary interest. The plaintiff then,.in this case, having had his surveys returned, and having thereby acquired an absolute and indefeasible title to the land in question, could not give it up, or abandon it, with any possible prospect of being able to remunerate or indemnify himself for the loss. Abandonment, therefore, must be considered as being wholly out of the case.
Had an actual possession, adverse to the plaintiff’s right, been taken by the defendants, or those from whom they claim, of the land in dispute, and kept by them continuously for twenty-one years, without anything being done during that period to put an end to it, the plaintiff might have lost his right, not by abandonment, however, but by the operation of a positive enactment of the Legislature. The statute of limitations, as it is called, would doubtless have interposed, and not only have protected the defendants in their possession, but have given them a right to the land. This, however, as it would appear from the> evidence, does not seem to have been the case. The subject of abandonment is very fully discussed, and all the authorities bearing on it referred to, in Adams v. Jackson, (4 Watts & Serg. 74 et seq.). From which it will be seen that no abandonment can take place of such a title to [197]*197land as exists on the part of the plaintiff in the present case. The case of Foust v. Ross, (1 Watts & Serg. 506), cited and relied on by the court as authorizing it to submit the question of abandonment by the plaintiff of his title to the jury, was never intended to be applied to such a case as the present.
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The opinion of the Court was delivered by
Kennedy, J.
It is unnecessary to pass an opinion upon the bills of exception to the admission of evidence, as no injury or detriment whatever could have accrued to the plaintiff from it. For, according to the instruction given by the court to the jury, it had no concern with, or relation to the ground on which the court charged erroneously against him. The court expressly told the jury that the plaintiff’s title to the land in question was originally the best, and was so still, unless the jury should be of opinion that it had been abandoned by him, or those through whom he claimed. So that the evidence admitted and excepted to, having no relation or bearing whatever upon the fact or notion of abandonment, could not have prejudiced the plaintiff in the slightest possible degree.
But the instruction of the court to the jury in regard to the plaintiff’s having abandoned his prior and better right to the land, [195]*195is what we think he has just ground to complain of; and that the court erred in leaving it to the jury to say whether, under the circumstances and facts given in evidence, the plaintiff, or those from whom he derived his claim to the land in question, had not abandoned their right and title to it. The title under which the plaintiff' claimed the land, consisted of warrants obtained from the Land Office in August 1793, upon which the purchase money was paid to the Commonwealth at the time, surveys made thereon in the next succeeding month, embracing the land in dispute, which were returned into the Land Office, and accepted there in the month of February of the following year, whereby the contract for the sale and purchase of all the land included within the surveys, of which the land in controversy formed a part, became complete and binding upon the warrantees, as well as the Commonwealth; so that neither the one or the other, without mutual consent, could annul or rescind or undo what had been done in pursuance of it, not even so as to change or shift the warrants to any other land. The Commonwealth became bound to perfect the title to the warrantees for the land so surveyed, upon their paying the patenting fees and the purchase money for the excess of land contained in the surveys, beyond the quantity mentioned in the warrants. And the warrantees, on the other hand, became bound to pay for such excess and the patenting fees, which the Commonwealth had the power of enforcing whenever she pleased. Until the survey made in pursuance of a warrant shall have been returned into the Land Office, the warrantee may change the location of it, by shifting and having it made upon other land remaining unappropriated, and thus abandon his first survey, and all claim to the land embraced within it. Having such right to change the location of his survey at any time before it shall have been returned by the deputy-surveyor, it would seem to be not only reasonable, but necessary, on grounds of expediency and good policy, that he should be required to pay the deputy-surveyor, who has made the survey, his fees for so doing, within a reasonable time, so as to make it the duty of the latter to return the survey into the surveyor-general’s office; or otherwise he, although he may have no idea of abandoning his survey or claim to the land included in it, may lose it, by even a junior warrantee getting it surveyed and returned under his warrant. For it is manifest that it would be unjust, as regards the interest of the Commonwealth, that the owner of the senior warrant, or warrants under which the first survey has been made, should be permitted, in such case, by withholding the return of his survey for any unreasonable length of time, to keep the Commonwealth in a state of suspense as to whether he will take the land actually surveyed under his warrant or not; and finally, if he concludes not to take it, and has a second survey made on and returned for other unappropriated land, he may possibly prevent the Commonwealth from selling the land embraced in the first survey, or [196]*196at least cause great delay in her doing so. In order, therefore, that the Commonwealth may not be prejudiced by the neglect of the party, in such case, to have his survey returned within a reasonable time, it is right upon principles of sound policy, as also those of justice, that, after such reasonable time has elapsed, without any return of the survey having been made, owing to the neglect or will of the party for whom it was made, the Commonwealth should have the right to dispose of the land again to the first applicant, or that any prior or subsequent warrantee should be at liberty to appropriate it, by having a survey made upon it under his warrant; and that the party for whom the first survey was made shall be presumed to have abandoned it, whether he actually intended to do so or not. That such presumption is founded in reason, cannot, I think, be denied. But it is likewise founded upon what may be considered natural, or at least cannot be said to be unnatural, and may be consistent with ordinary motives of human action. For the party may have discovered unappropriated land lying elsewhere, preferable, in his estimation, to that included in his survey, which he has it in his power to secure as long as his survey remains unreturned. But after having returned his survey, he is bound by it, and cannot take other land, so that all possible ground for presumption of abandonment is out of the question, for he cannot then abandon his right to the land without abandoning his right also to the warrant, and losing the purchase money which he has paid the Commonwealth for it. That he would do this, cannot well be presumed, because it is contrary to the common incentives which generally govern and influence all mankind, that any one should be so regardless of his pecuniary interest. The plaintiff then,.in this case, having had his surveys returned, and having thereby acquired an absolute and indefeasible title to the land in question, could not give it up, or abandon it, with any possible prospect of being able to remunerate or indemnify himself for the loss. Abandonment, therefore, must be considered as being wholly out of the case.
Had an actual possession, adverse to the plaintiff’s right, been taken by the defendants, or those from whom they claim, of the land in dispute, and kept by them continuously for twenty-one years, without anything being done during that period to put an end to it, the plaintiff might have lost his right, not by abandonment, however, but by the operation of a positive enactment of the Legislature. The statute of limitations, as it is called, would doubtless have interposed, and not only have protected the defendants in their possession, but have given them a right to the land. This, however, as it would appear from the> evidence, does not seem to have been the case. The subject of abandonment is very fully discussed, and all the authorities bearing on it referred to, in Adams v. Jackson, (4 Watts & Serg. 74 et seq.). From which it will be seen that no abandonment can take place of such a title to [197]*197land as exists on the part of the plaintiff in the present case. The case of Foust v. Ross, (1 Watts & Serg. 506), cited and relied on by the court as authorizing it to submit the question of abandonment by the plaintiff of his title to the jury, was never intended to be applied to such a case as the present. There the plaintiff claimed the land in dispute by virtue of the only warrant and survey that ever appeared to have been applied to it, and a sale made of the same by the sheriff of the county under a warrant of the county commissioners, for and on account of taxes remaining unpaid, which had been assessed upon it as unseated land anterior to the passage of the Act of 1815. The defendant did not pretend that he had any title to the land, but objected to the regularity of the sale made of it for taxes, under which the plaintiff claimed, alleging that the sale was void, inasmuch as it had not been shown to have been made in exact conformity to the Acts of Assembly in force on the subject, prior to the Act of 1815. The court, however, held that it was not competent for an intruder upon the land, who was a stranger to the only title shown for it, without any authority from the warrantee, to contest the validity of the sale ■made on account of taxes. The warrantee or owner of the land at the time of the sale, had an unquestionable right to waive all objections to the irregularities of it; and if he did so, the right of the purchaser thereby became good and indefeasible. And where the warrantee or owner of unseated land, after an irregular sale made of it on account of taxes in arrear upon it, lies by for twenty-one years, without making any claim to it by paying the taxes assessed, or exercising acts of ownership on it, but suffers the purchaser, his heirs or assigns, at the tax sale, to pay the taxes assessed during that period, it. may fairly be presumed that he has waived his right to object to the sale; or, in other words, as w7as said in Foust v. Ross, that he has abandoned his right to the land in favour of the purchaser at the tax sale. And whenever he does so relinquish his right to the land, he becomes entitled to receive the surplus money arising from the sale, after paying the taxes and costs out of it, so that he may be said to have some consideration, if not an adequate one, for doing so. Nothing beyond this was decided in Foust v. Ross, which does not furnish even the least shadow of ground for saying that the owner of land, holding it under a warrant and survey returned, can be said to have abandoned his right to it, where no sale has been made of it for taxes or other legitimate purpose, or adverse possession been taken of it and held continuously for twenty-one years at least, though forty years or more may have passed by without his taking actual possession of it, or exercising acts of ownership upon it.
Judgment reversed, and a venire de novo awarded.