WASHINGTON, Circuit Justice.
On the 23d of September, 1731, an agreement was made between the younger and elder branches of the Penn family; by which the right of government, and soil of the province of Pennsylvania, was confirmed to the younger branch, and the private rights of the elder branch were confirmed to them. The plaintiff claims under the elder branch, and he founds his title on the warrant to William Penn, the second, for 200 acres of liberty [1026]*1026land; to which he was entitled in virtue of his character as first purchaser. The defendant claims under the younger branch of the family, who became, by the will of the first William Penn, and the subsequent family compact, entitled to all the proprietary rights in this province. The title of the defendant is founded upon the right of the first William Penn, to a certain district of country lying between Vine street, Pegg’s run, the Delaware, and so north and west to the Schuylkill; which it is said was appropriated by the proprietary to his own use, as a manor; and consequently that the first purchasers had no right, to lay their warrants upon lands, thus appropriated to the use of the proprietary.
The first great inquiry is, was the land in question laid off by the first proprietary for a manor; or was it laid off and appropriated as liberty land, for the use of the first purchasers? This is a question of fact for the consideration of the jury.
Second. If it was laid off for a manor, had the proprietary a right to appropriate it to his private use? This is a question of law for the court.
1st. To prove that the tract, containing 1840 acres, of which the land in question is a part, was laid off for a manor, the defendant relies upon the following evidence: (1) An account of Mr. Fairman, formerly a surveyor of the proprietaries, dated in 1682; in which he charges the proprietaries “for taking an estimate of a vacancy on both sides of the town, divided from the liberty land; which the proprietary accepted, and afterwards called it the manor of Springettsbury. (2) An old map, supposed to have been made, and by comparison of hands, believed to have been in the handwriting, of Edward Pennington, surveyor general, about the year 1701; in which the manor is laid off. in the manner contended for by the defendant. The boundaries of this manor have lately been laid off, according to adjoining surveys, calling for the manor; and found to correspond with this ancient map. The admission of this map was objected to, but admitted by the court as an old paper which supports, and has gone along with the possession; and though not signed by Edward Pennington, yet from the similarity of the haudwriting, with that found in the office of the same person, whilst he was surveyor general, it was supposed by the court to be proper to leave it to the jury, to give to it such weight as the support it may receive from other parts of the evidence, might, in their opinion, entitle it to. (3) As a further corroboration of the manor having been once ■surveyed, as distinct from the liberties; we find, in the year 1703, a warrant for re-surveying it, as also the liberties. (4) Then follow the lines of all the adjoining surveys, calling for and fixing the boundaries of this manor. Ancient boundaries are frequently established, by the reputation and understanding of the. neighbourhood. When no better evidence can be obtained, even the hearsay of old persons, now dead, as to the reputed bounds, is often, and properly, resorted to. The lines of junior patents, calling for those of elder patents, contribute to establish the latter. But upon a question which not only involves the boundaries of this man- or, but the right of the proprietary to lay it off; surveys, and grants binding upon the manor, and calling it the property of the proprietary, and this within a few years after it was laid off, are the strongest kind of evidence. It is the testimony of men,- who must have been well acquainted with the fact; attesting the truth of it, by acts which leave no room for doubt. We find more than twenty surveys, fixing the lines of the manor, as laid down in the map, said to be Pennington’s; and all of them calling it, the manor of Springettsbury — proprietary’s, or governor's land. These surveys, grants, and warrants, were made from the year 1684 to 1691. Then come the proceedings of the commissioners of property, in 1691, which fix the boundaries of the manor at the north end of the city, bounding on the Delaware and Pegg’s creek. In the sales of Hartzfelter’s tract, made by Pegg to Fitzwater, in 1720; from Fitzwater to Stenner, in 1737; from Stenner to Wishart. in 1759; they all call this “Governor’s Land in the Northern Liberties.” In 1696, upon a division amongst the Swanson family, they attest the same fact. And. in 1736, we find' by a petition, called the “Stone Quarry Petition.” signed by a great number of persons, amongst whom are some of the first purchasers, the same admission, is made. This is the evidence, and proves the existence oi the manor, and of its bounds. The proofs are progressive, and are afforded in different ways, from the year 1684 to 1759. On the other side, the plaintiff has produced a great number of surveys, warrants, and grants, extending from the south-west side of the Schuylkill, and surrounding the manor as far north and east as Cohocksink creek; in which the lands they cover are called “liberty lands.” Now this evidence does not, in any respect, conflict with, or disprove the fact asserted by the defendant; because the establishment of liberty lands does not disprove the existence of a manor, unless those surveys of liberty lands had been located within the bounds of the manor; which is by no means the case. The defendants prove the existence of a manor, and admit there were liberty lands adjoining Philadelphia, and adjoining also the manor. The jury will therefore say. upon this point, whether, at the distance of one hundred and twenty years, the proofs of the defendant are satisfactory, to establish the lines of this ancient manor.
2d. The next question is, had the proprietary a right to establish this manor? He certainly possessed the right, unless he precluded himself, by the concessions made to the first purchasers. But this was by no means the case. He stipulated to lay off so much land, for the benefit of the first pur[1027]*1027chasers, adjoining the city; and the warrant to Noble, in 1632, directing him to survey and surround a certain quantity of land adjoining the city of Philadelphia, for the benefit of first purchasers; may well be considered as ■evidence of this fact. Now the liberty lands •do adjoin the city on the west; and as this warrant does not say that it is to adjoin it also on thé north, the promise of the proprietary is complied with; although he appropriated to his own use the land at the north ■end of the city. But whatever was the nature of the last agreement, made with the first purchasers; it was in the power of all the parties concerned, to alter it; and the entire acquiescence of the first purchasers, to the establishment of this manor, ought at this •day to be considered as evidence of an agreement, by which the proprietary was permitted to make such an appropriation. Even ■William Penn, the second, by having never ¡surveyed his warrant for 200 acres, though he was careful enough to survey his warrant for •country lands; affords evidence that he had no right to locate it within the manor.
[A motion for attorney’s fees was passed upon in Case No. 6,928. A similar ejectment suit was tried in Case No. 6,930. In Case No. 0,-940, a motion for a continuance on the ground of an improper newspaper publication was denied.] Free access — add to your briefcase to read the full text and ask questions with AI
WASHINGTON, Circuit Justice.
On the 23d of September, 1731, an agreement was made between the younger and elder branches of the Penn family; by which the right of government, and soil of the province of Pennsylvania, was confirmed to the younger branch, and the private rights of the elder branch were confirmed to them. The plaintiff claims under the elder branch, and he founds his title on the warrant to William Penn, the second, for 200 acres of liberty [1026]*1026land; to which he was entitled in virtue of his character as first purchaser. The defendant claims under the younger branch of the family, who became, by the will of the first William Penn, and the subsequent family compact, entitled to all the proprietary rights in this province. The title of the defendant is founded upon the right of the first William Penn, to a certain district of country lying between Vine street, Pegg’s run, the Delaware, and so north and west to the Schuylkill; which it is said was appropriated by the proprietary to his own use, as a manor; and consequently that the first purchasers had no right, to lay their warrants upon lands, thus appropriated to the use of the proprietary.
The first great inquiry is, was the land in question laid off by the first proprietary for a manor; or was it laid off and appropriated as liberty land, for the use of the first purchasers? This is a question of fact for the consideration of the jury.
Second. If it was laid off for a manor, had the proprietary a right to appropriate it to his private use? This is a question of law for the court.
1st. To prove that the tract, containing 1840 acres, of which the land in question is a part, was laid off for a manor, the defendant relies upon the following evidence: (1) An account of Mr. Fairman, formerly a surveyor of the proprietaries, dated in 1682; in which he charges the proprietaries “for taking an estimate of a vacancy on both sides of the town, divided from the liberty land; which the proprietary accepted, and afterwards called it the manor of Springettsbury. (2) An old map, supposed to have been made, and by comparison of hands, believed to have been in the handwriting, of Edward Pennington, surveyor general, about the year 1701; in which the manor is laid off. in the manner contended for by the defendant. The boundaries of this manor have lately been laid off, according to adjoining surveys, calling for the manor; and found to correspond with this ancient map. The admission of this map was objected to, but admitted by the court as an old paper which supports, and has gone along with the possession; and though not signed by Edward Pennington, yet from the similarity of the haudwriting, with that found in the office of the same person, whilst he was surveyor general, it was supposed by the court to be proper to leave it to the jury, to give to it such weight as the support it may receive from other parts of the evidence, might, in their opinion, entitle it to. (3) As a further corroboration of the manor having been once ■surveyed, as distinct from the liberties; we find, in the year 1703, a warrant for re-surveying it, as also the liberties. (4) Then follow the lines of all the adjoining surveys, calling for and fixing the boundaries of this manor. Ancient boundaries are frequently established, by the reputation and understanding of the. neighbourhood. When no better evidence can be obtained, even the hearsay of old persons, now dead, as to the reputed bounds, is often, and properly, resorted to. The lines of junior patents, calling for those of elder patents, contribute to establish the latter. But upon a question which not only involves the boundaries of this man- or, but the right of the proprietary to lay it off; surveys, and grants binding upon the manor, and calling it the property of the proprietary, and this within a few years after it was laid off, are the strongest kind of evidence. It is the testimony of men,- who must have been well acquainted with the fact; attesting the truth of it, by acts which leave no room for doubt. We find more than twenty surveys, fixing the lines of the manor, as laid down in the map, said to be Pennington’s; and all of them calling it, the manor of Springettsbury — proprietary’s, or governor's land. These surveys, grants, and warrants, were made from the year 1684 to 1691. Then come the proceedings of the commissioners of property, in 1691, which fix the boundaries of the manor at the north end of the city, bounding on the Delaware and Pegg’s creek. In the sales of Hartzfelter’s tract, made by Pegg to Fitzwater, in 1720; from Fitzwater to Stenner, in 1737; from Stenner to Wishart. in 1759; they all call this “Governor’s Land in the Northern Liberties.” In 1696, upon a division amongst the Swanson family, they attest the same fact. And. in 1736, we find' by a petition, called the “Stone Quarry Petition.” signed by a great number of persons, amongst whom are some of the first purchasers, the same admission, is made. This is the evidence, and proves the existence oi the manor, and of its bounds. The proofs are progressive, and are afforded in different ways, from the year 1684 to 1759. On the other side, the plaintiff has produced a great number of surveys, warrants, and grants, extending from the south-west side of the Schuylkill, and surrounding the manor as far north and east as Cohocksink creek; in which the lands they cover are called “liberty lands.” Now this evidence does not, in any respect, conflict with, or disprove the fact asserted by the defendant; because the establishment of liberty lands does not disprove the existence of a manor, unless those surveys of liberty lands had been located within the bounds of the manor; which is by no means the case. The defendants prove the existence of a manor, and admit there were liberty lands adjoining Philadelphia, and adjoining also the manor. The jury will therefore say. upon this point, whether, at the distance of one hundred and twenty years, the proofs of the defendant are satisfactory, to establish the lines of this ancient manor.
2d. The next question is, had the proprietary a right to establish this manor? He certainly possessed the right, unless he precluded himself, by the concessions made to the first purchasers. But this was by no means the case. He stipulated to lay off so much land, for the benefit of the first pur[1027]*1027chasers, adjoining the city; and the warrant to Noble, in 1632, directing him to survey and surround a certain quantity of land adjoining the city of Philadelphia, for the benefit of first purchasers; may well be considered as ■evidence of this fact. Now the liberty lands •do adjoin the city on the west; and as this warrant does not say that it is to adjoin it also on thé north, the promise of the proprietary is complied with; although he appropriated to his own use the land at the north ■end of the city. But whatever was the nature of the last agreement, made with the first purchasers; it was in the power of all the parties concerned, to alter it; and the entire acquiescence of the first purchasers, to the establishment of this manor, ought at this •day to be considered as evidence of an agreement, by which the proprietary was permitted to make such an appropriation. Even ■William Penn, the second, by having never ¡surveyed his warrant for 200 acres, though he was careful enough to survey his warrant for •country lands; affords evidence that he had no right to locate it within the manor.
[A motion for attorney’s fees was passed upon in Case No. 6,928. A similar ejectment suit was tried in Case No. 6,930. In Case No. 0,-940, a motion for a continuance on the ground of an improper newspaper publication was denied.]
3d. The next question, also a question of law, is, can the plaintiff recover on his warrant and survey? It is agreed by the counsel ■on both sides, that a warrant, without a survey, does not in this state give a legal right of entry; and it is also agreed as a general rule, that the survey, to be valid, must be made by an authorized surveyor, which has not been done in this case. But it is contended by the plaintiff’s counsel, that as soon as the liberty lands were laid off, the legal •estate thereto became vested in the first purchasers, as tenants in common; and that either tenant in common, might lay off his part, in severalty, without the aid of an authorized surveyor. If the first part of the position were established, I do not know that the consequence would follow. I should •doubt the power of one tenant in common, to •carve for himself, and say; that by virtue of such an act, he had appropriated this or that particular spot to his own use, in severalty. But the truth is, that the contract was made, not jointly, but severally, with each first purchaser; and the laying off the liberty lands, was only saying, that within those bounds, each first purchaser might locate his liberty land. But the same political reasons, which required an authorized survey to locate warrants in other parts of the province, applied with equal force to this particular territory. The warrants, with respect to these lands, were severally issued, and were directed to the surveyor general. He, then, or his deputies. could alone execute them.
4th. The next question is, is the plaintiff barred by the statute of limitations? The warrant issued in 1682 — it is argued that it was never executed till 1770, and that the plaintiffs never were in possession. It is said that there was a trust in this case, and William Penn, the first, was called the trustee. Under the 3d point, it was said, the legal estate passed to the first purchasers. The counsel perceiving the dilemma to which he was exposing himself, endeavoured very dexterously to avoid it, by calling William Penn, an agent for the first purchasers: but I do not see any ground for this. He issued warrants to each, authorizing them to survey liberty lands. This they might do or not, as they pleased, and he had no control over them, nor had he any agency in the business. But It is said, that when the proprietary took up this manor, he must have intended to include the rights of his two children, William, the second, and his sister. There is no kind of proof of this. But suppose it were the case, then it would follow, that William, the son. had only an equitable claim to lay his warrant somewhere within the manor; which would be a complete objection to his recovery at law.
Jury found a verdict for the defendant.