Lessee of Dick v. Cameron
This text of 1 Add. 337 (Lessee of Dick v. Cameron) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
No doubt this may be proper evidence in part; but the proper order is to prove an actual settlement first, and, having done that, then to prove a survey. The question whether an actual settlement has been made, involves a point of law to be determined by the court. Whether the party has done certain acts, is a question of fact, which the jury must decide. Whether those acts amount to an actual settlement is a question of law which the court must decide.
It was then proved, that, in June, 1795, Dick, with other improvers assisting him, made between 300, and 400 rails, put them up in a fence, four rails high, inclosed about one-third of an acre, dug it with a hoe, planted corn, potatoes, and garden-feeds, and returned home to Meadville.
Brackenridge then proposed to prove, that, in September, 1795, Dick put another person on this land, as his agent, to improve for him.
Woods objected to such testimony. No person, who has not a warrant, can, under the act of 1792, derive a title from a settlement, unless it be made by himself. The grantee of a warrant may either make or cause to be made, the actual settlement required. The improver without warrant must make an actual settlement.
Brackenridge. The distinction is too ingenious, and favours more of the casuistry of the schools, than the found deductions of reason. This could not be the meaning of the legislature. Law is founded on reason, and on various other grounds, one of which is principles or maxims. This is one of the noblest grounds of the law; and one maxim is Qui facit per alium facit per se. It must have been the intention of the legislature to provide for those who are not able to supply themselves with provisions, and might with to engage as agents to others for money, or a part of the land. It is true the law has been abused, by the appropriation of many tracts by means of agents.
Woods. Those agents and their employers can be equally provided for, by supposing the title veiled in the agent, under an agreement to convey to the employer.
President. The law of 1792 has it in view to accommodate two different descriptions of persons; those possessed of money, which they were desirous to employ ill the purchase of even more land than they could occupy themselves; and those who, without money, were desirous to appropriate to themselves a trait not exceeding 400 acres of land, as a residence and fund of subsistence. This law, therefore, has two objects, to increase the money in the state treasury, and to settle the frontier lands. Whether these views of the legislature be so compatible, as to be effectually and beneficially pursued together, and which, when they clash, ought to be favoured, some may doubt.
However this may be, vast quantities of land have been appropriated or claimed by individuals, by both methods. The claim by one man of any quantity, however great, by means of money, was plainly within the view of the legislature, and is sanctioned by this law. The claim, by one man, of any quantity exceeding 400 acres, by means of labour, was not within the view of the legislature; and having been made in a manner, and to an extent, amounting to an abuse of the law, we ought to lay hold of any words in the law to restrain it within the bounds which the law meant, 400 acres.
We have, on former occasions, expressed an opinion, from which we now see no reason to depart, that it will bell accomplish the objects of the law, to say, that no title shall be derived from a settlement, but to the person by whom the settlement was made; and that the survey ought to be made for the resident settler, and not for the employer. The surveyor is to survey for him who has made the settlement. The grantee of a warrant is to make, or cause to be made, the settlement. As these words will justify this construction, if this construction will bell effect the views of the legislature, (and we think it will) the construction of the law ought to be limited by these words.—The law will then stand thus. He who would appropriate land by means of labour, must limit his claim to 400 acres; the labour mull be exerted by him or under his direction; he must reside on this land, and make it the residence of his family. If any man would appropriate to himself more than 400 acres, he must begin with money, and take out a war[341]*341rant. He who would appropriate land by money, may appropriate to himself any quantity whatever, for which he can purchase warrants, and proceed to make or cause to be made the settlements required by law. Thus the rich are permitted to engross land, only by means of money, and an opportunity is left to the poor to provide a competence, by means of labour. But if the rich were permitted to engross both by money and by labour; the poor would be excluded from all means of procuring land.
But however this might incline us to consider the testimony as improper, we will not so far determine the point as to exclude it. We will therefore receive the testimony, but under this condition, that, if there be a verdict for the plaintiff, the defendant shall have leave to move to set it aside on this ground, and to have judgment of nonsuit entered.
Evidence was then given, that, in September, 1795, Dick put one Mushrush in possession of this land, that there were then less than an acre in corn and potatoes planted in the spring before, and, though no cabbin was near this, there were three on this tract of land, two of which were understood to have been built by Dick; that Mushrush and his son went into one of them, but that his family was not in that part of the country; and that he cleared, and burned brush; that in March or April, 1796, he was clearing, had about four acres cleared, and had timber cut for rails; that Dick then went to warn Cameron off; that Cameron was not then on the place, that he claims two or three other places, and has two sons, one grown up fit for a man’s work, another not so, and that his wife resides in Meadville; and that one Jackson was then on the place.
Brackenridge then offered to prove, that Dick had made a survey round this land.
Woods objected, because no actual settlement had been made.
President. If the survey was made during the time that Mushrush was resident on the land, it may be given in evidence as an act of his or of Dick, circumscribing the boundary of his settlement then begun and profecuting.
[342]*342A witness then swore, that, in April, 1795, he run the closing line of a survey for Dick.
On the part of the defendant, it was proved, that, in August, 1793, he raised a house on the land, that another cabbin was built on another place for his son, a working lad; that the Indians were troublesome, and he left that part of the country, and went, to Northumberland county, where he had his family; that, in spring 1794, he prepared to remove with his family, which, being large, he could not take over the mountains then, left them on the weft branch of the Susquehannah; that he proceeded with his eldest son, lived in the cabbin, and worked on the land; that, in harvest, he returned, and brought up his family to Pittsburgh, where he said he would leave them, till the Indians
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