Pennsylvania v. Huston

1 Add. 334

• Court: Pennsylvania Court of Common Pleas, Alleghany County
• Decided: September 15, 1797
• Status: Published

Opinion

President.

A surveyor, if justifiable, surely cannot be compelled, to make a survey without a warrant, unless there be an actual settlement. An actual settlement is to be considered as meaning the same thing in the act of 3d April, 1792, as in the act of 30th December, 1786; “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. The law of 1792 seems to justify defining an actual settlement to be a clearing, fencing and cultivating at least two acres for every hundred claimed, and erecting thereon a messuage for the habitation of man. Such settlement with a residence of five years intitles to a patent on the payment of the fixed price. A warrant operates against a settlement from the date of its entry with the surveyor.— There was a survey of this land in 1795, on a warrant under which Welsh claims. There was no settlement by Huston till 1796. A settlement had been begun, but not accomplished before; and if the excuse of war will save the settlement, it saves the warrant; and the warrant was entered before the settlement was completed. The clause excusing settlements, in case of war, and persisting in endeavours to make them, ought to be construed reddendo singula singulis. The actual settler who has made a settlement is excused from continuing it, if he be driven therefrom by force of arms of the enemies of the United States. The grantee by warrant is excused from making an actual settlement, if he be prevented from making such settlement by such force.

The law has in view two sorts of actual settlers; one deriving title from their warrants, the other from their settlements. Both titles are to be equally protected, because both are equally lawful. The one settler begins his title with money, and must complete it with labour. The other begins it with labour, and must complete it with money. Money is the fruit of labour. Whether the title be begun with money, or with labour, the settlement of the country is provided for. But when these different titles interfere, which shall give way? The warrant excludes the settlement, only from its entry with the surveyor. But before this entry, the grantee has paid his money, perhaps the savings from the labour of years, into the Land-Office. And in the mean time, perhaps between the date and the entry of the warrant, another goes and makes an improvement on the land. Which title shall give way? If the improver has so far proceeded, as to have made an actual settlement, the grantee must lose his money, and drop his claim. But if the improver has not so laboured as to have made an actual settlement; why, since one must lose, may not he as well lose his labour, as the grantee lose his money?

But there was no survey for Huston, and therefore we know not whether this house was within his claim; nor, if it was, whether his claim ought to have included it; for he may have claimed more than 400 acres, and so had no right to exclude other settlers. A man in actual possession of part is in possession of all the rest of only his lawful claim. If a man settles on land without any survey, he may perhaps make vague boundaries inclosing a thousand acres; while he is intitled to only four hundred. This can never be supposed to be such a possession as will exclude others from settling within such claim.

Huston, therefore, having no survey, ought not to have used the force of demolishing the house; but ought to have proceeded to ascertain his right, and prosecute it in a legal way.

If no more than one was concerned, all must be acquitted.

The jury found a verdict—not guilty.