The opinion of the court was. delivered by
Kennedy, J.
The first error assigned is in a bill of exception to evidence rejected by the court. The defendants below, who are the plaintiffs in error, offered to prove by Mr Chapman, the deputy-surveyor of the district, who made the survey locating the warrant of Gardinier, one of the plaintiffs in error, that at the time he was doing the same, and when he was about to run the lines between Marcy, the defendant in error’s improvements, and the Hartley survey, William Hartley, who at the time, or previously thereto, had [340]*340been interested in or owner of the land held under the Hartley survey, was present upon the ground with the deputy-surveyor, and showed him the Hartley line, and where it ran. The object of this evidence was to show that the survey of Gardinier was made under information calculated to produce an honest conviction, that the land taken into Gardinier’s survey, adjoining to the Hartley survey, was vacant; because, being made under advice received from one who had had a connection with and an interest in the Hartley survey, it might therefore reasonably be presumed'that what he said in regard to the land adjacent thereto being unappropriated or not, was true. We think that under this view 'the evidence might have been material to the issue, to show, if nothing more, that the irregular figure of Gardinier’s survey was the result, as it was believed at the time by those concerned in making it, of the previous appropriation of the adjacent lands, and not the result of choice or design to deal un? fairly with the commonwealth. The evidence offered was certainly part of the res gestse, and as it tended, at least in some degree, to show that the survey was fairly made, it ought to have been re-? ceived. We, therefore, think there was error in rejecting it.
Tfie second error, though embracing four of the points, viz., the third, fourth, fifth and sixth, submitted by the counsel for the plain-? tiffs in error to the court below for their instruction to the jury on them, involve but one question; and that is, whether Marcy, the defendant in error, had a right to hold woodland within the compass ,of four hundred acres, including his settlement by virtue thereof, .and to prevent the commonwealth from granting it to Gardinier, though he only wanted the woodland for the purpose of getting the timber trees growing upon it; converting them into lumber, and then abandoning it without paying the commonwealth for it. The court below, according to their answers given to the third, fourth and fifth points, seem to have thought that he had such right; but, to the sixth point, they have answered as if they were of the opinion that he had not.
This inconsistency on the part of the court, in laying down the law to the jury, would of itself be sufficient to reverse their judgment. Because it is certain that their answers being given to the same questions, and being in direct contradiction to each other, both cannot be right. But how were the jury to determine which answer was right? And again, supposing that the jury adopted the right answer, how are we to ascertain that they did so? If we were at liberty to indulge in conjecture concerning it, it would perhaps be most reasonable to say, that they took that answer to be the law of the case which would seem best suited to support their verdict. But this is the answer which we think the court below ought not to have given. Although it cannot be questioned, but a settler upon land, not otherwise appropriated, has a right to extend his claim by virtue thereof, so as to include four hundred acres, besides the usual allowance of six per cent, for roads, &c., yet he can only do it by [341]*341conforming to the spirit as well as the letter of the several acts of assembly on this subject. It has been argued that the act of 1786 merely requires on the part of the settler “ an actual personal resident settlement, with a manifest intention' of making it a place of abode and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, &c., without any thing being said of his intention, to pay the commonwealth for it; and, therefore, whatever his design or intention may be in this respect, it cannot affect his right of pre-emption to the four hundred acres.” It has also been said, that by cutting the timber trees off the land, for the purpose of converting them into lumber, and making profit thereby, without intending to make any further use of the land, is making it “ the means of supporting a family” as well as if it were used for agricultural purposes. But these arguments are more specious than sound ; because they do not comport with what must be considered the true meaning and spirit of our land laws. The meaning of the words, “mákingthe land the means of supporting a family” may be considered as explained by the first section of the act of the 22d of September 1794, which declared, that “ no application should be received at .the land office for any lands within this commonwealth, except for such lands whereon a settlement had been or thereafter should be made, grain raised, and a person or persons residing thereon.” Thus connecting the personal residence upon the land with the business of raising or growing grain upon it, and by this means supporting the family residing thereon. Beside the quantity of land to be acquired, by a settlement being limited to four hundred acrep, shows that this right of pre-emption on, account of it was not granted to the settler for the purpose of inducing him to cut the timber trees off from the land without improving or cultivating it, and thus support,his family; for, if the commonwealth had been content with this use alone being made of her wild and unappropriated lands, and willing to have granted such pre-emption right with a view to the accomplishment of this end, it is very obvious that four hundred acres.would not have supplied the means of supporting a family in this way,-but for a few years at most; and that a much larger quantity would have been requisite, and ought, therefore, to have been allowed. But using the land for agricultural purposes, and by these means supporting a family, which was clearly what the legislature intended, four hundred acres was a very ample allowance. Then, as regards the intention of the settler to pay the commonwealth for the land, I do not see how he can be said to intend making it th& permanent and continuous means of supporting his family, unless he also intends complying with the only condition ultimately, upon which he can expect to hold it, to wit, that of paying to the state the purchase-money for it. From the express language of the act, as well as the plain meaning of it, the settler must not only intend to make the land his permanent place of abode, but likewise the permanent means of supporting his family; for the [342]*342words, “ continued from time.. to time, unless interrupted, &c.” have a reference to both; and whatever quantity of land, provided it does not exceed four hundred acres, he really intends to appropriate and use for this purpose he is entitled to have.
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The opinion of the court was. delivered by
Kennedy, J.
The first error assigned is in a bill of exception to evidence rejected by the court. The defendants below, who are the plaintiffs in error, offered to prove by Mr Chapman, the deputy-surveyor of the district, who made the survey locating the warrant of Gardinier, one of the plaintiffs in error, that at the time he was doing the same, and when he was about to run the lines between Marcy, the defendant in error’s improvements, and the Hartley survey, William Hartley, who at the time, or previously thereto, had [340]*340been interested in or owner of the land held under the Hartley survey, was present upon the ground with the deputy-surveyor, and showed him the Hartley line, and where it ran. The object of this evidence was to show that the survey of Gardinier was made under information calculated to produce an honest conviction, that the land taken into Gardinier’s survey, adjoining to the Hartley survey, was vacant; because, being made under advice received from one who had had a connection with and an interest in the Hartley survey, it might therefore reasonably be presumed'that what he said in regard to the land adjacent thereto being unappropriated or not, was true. We think that under this view 'the evidence might have been material to the issue, to show, if nothing more, that the irregular figure of Gardinier’s survey was the result, as it was believed at the time by those concerned in making it, of the previous appropriation of the adjacent lands, and not the result of choice or design to deal un? fairly with the commonwealth. The evidence offered was certainly part of the res gestse, and as it tended, at least in some degree, to show that the survey was fairly made, it ought to have been re-? ceived. We, therefore, think there was error in rejecting it.
Tfie second error, though embracing four of the points, viz., the third, fourth, fifth and sixth, submitted by the counsel for the plain-? tiffs in error to the court below for their instruction to the jury on them, involve but one question; and that is, whether Marcy, the defendant in error, had a right to hold woodland within the compass ,of four hundred acres, including his settlement by virtue thereof, .and to prevent the commonwealth from granting it to Gardinier, though he only wanted the woodland for the purpose of getting the timber trees growing upon it; converting them into lumber, and then abandoning it without paying the commonwealth for it. The court below, according to their answers given to the third, fourth and fifth points, seem to have thought that he had such right; but, to the sixth point, they have answered as if they were of the opinion that he had not.
This inconsistency on the part of the court, in laying down the law to the jury, would of itself be sufficient to reverse their judgment. Because it is certain that their answers being given to the same questions, and being in direct contradiction to each other, both cannot be right. But how were the jury to determine which answer was right? And again, supposing that the jury adopted the right answer, how are we to ascertain that they did so? If we were at liberty to indulge in conjecture concerning it, it would perhaps be most reasonable to say, that they took that answer to be the law of the case which would seem best suited to support their verdict. But this is the answer which we think the court below ought not to have given. Although it cannot be questioned, but a settler upon land, not otherwise appropriated, has a right to extend his claim by virtue thereof, so as to include four hundred acres, besides the usual allowance of six per cent, for roads, &c., yet he can only do it by [341]*341conforming to the spirit as well as the letter of the several acts of assembly on this subject. It has been argued that the act of 1786 merely requires on the part of the settler “ an actual personal resident settlement, with a manifest intention' of making it a place of abode and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, &c., without any thing being said of his intention, to pay the commonwealth for it; and, therefore, whatever his design or intention may be in this respect, it cannot affect his right of pre-emption to the four hundred acres.” It has also been said, that by cutting the timber trees off the land, for the purpose of converting them into lumber, and making profit thereby, without intending to make any further use of the land, is making it “ the means of supporting a family” as well as if it were used for agricultural purposes. But these arguments are more specious than sound ; because they do not comport with what must be considered the true meaning and spirit of our land laws. The meaning of the words, “mákingthe land the means of supporting a family” may be considered as explained by the first section of the act of the 22d of September 1794, which declared, that “ no application should be received at .the land office for any lands within this commonwealth, except for such lands whereon a settlement had been or thereafter should be made, grain raised, and a person or persons residing thereon.” Thus connecting the personal residence upon the land with the business of raising or growing grain upon it, and by this means supporting the family residing thereon. Beside the quantity of land to be acquired, by a settlement being limited to four hundred acrep, shows that this right of pre-emption on, account of it was not granted to the settler for the purpose of inducing him to cut the timber trees off from the land without improving or cultivating it, and thus support,his family; for, if the commonwealth had been content with this use alone being made of her wild and unappropriated lands, and willing to have granted such pre-emption right with a view to the accomplishment of this end, it is very obvious that four hundred acres.would not have supplied the means of supporting a family in this way,-but for a few years at most; and that a much larger quantity would have been requisite, and ought, therefore, to have been allowed. But using the land for agricultural purposes, and by these means supporting a family, which was clearly what the legislature intended, four hundred acres was a very ample allowance. Then, as regards the intention of the settler to pay the commonwealth for the land, I do not see how he can be said to intend making it th& permanent and continuous means of supporting his family, unless he also intends complying with the only condition ultimately, upon which he can expect to hold it, to wit, that of paying to the state the purchase-money for it. From the express language of the act, as well as the plain meaning of it, the settler must not only intend to make the land his permanent place of abode, but likewise the permanent means of supporting his family; for the [342]*342words, “ continued from time.. to time, unless interrupted, &c.” have a reference to both; and whatever quantity of land, provided it does not exceed four hundred acres, he really intends to appropriate and use for this purpose he is entitled to have. But when he says and makes it known in such a manner as to induce a belief or conviction, that he has no intention of using or claiming the timber land, or any portion of it, though within the compass of four hundred acres of a reasonable figure around his settlement, for any other purpose than that of cutting off the valuable timber growing upon it, and then abandoning it, without paying the state for it, it is evident that he intends to practise a fraud upon the state, by divesting the land of all its valuable timber, and perhaps of every thing that it is valuable for, rendering it, therefore, worthless and paying her nothing for it. It is not to be endured for a moment, that the settler, whose intention is such in regard to woodland, though contiguous to his settlement, and which he might, therefore, fairly enough entitle himself to by virtue of his settlement if he would, shall be permitted thus to deprive the state of her right of selling such woodland to another. The court ought, therefore, to have instructed the jury, distinctly and without contradiction, to this effect. 1 would observe, however, that there is great allowance to be made for the court below in this case, on account of so many different points having been drawn up and submitted by the counsel to the court, though it was qnly to have their direction to the jury upon one single question. In the hurry of the trial, when a number of points are presented in such manner to the court for their instruction on them to the jury, with but little time allowed for reflection, it would be wonderful indeed if the court did not frequently misapprehend the import of some of them, and consequently fall into error in answering them. If counsel wish to have a question of law growing out of their case solved correctly by the court to the jury, so that it may be clearly comprehended and understood by the latter, they had better make but one point of it; for by multiplying points with studied variations, for the purpose of obtaining an answer in reality to the same question, if the court do not become perplexed and confused by such course it is most likely that in all cases the jury will, though the answers should be correct.
Judgment reversed, and a venire de novo awarded.