[522]*522The opinion of the Court was delivered by
Kennedy, J.
The plaintiff in error was the defendant below; and the first error assigned, which is the only one that raises a question of sufficient importance to make it worthy of particular notice, is founded upon the charge of the court to the jury in answer to the plaintiff' in error’s first point. By this point, the court was requested to instruct the jury, that “if the warrant of Ephraim Steele be special for the land in dispute, and duly surveyed, and the land in dispute be within that survey, the plaintiff cannot recover from any title shown or set up in this case.” In order to bring to view the whole of the judge’s answer to this point, it is necessary to refer to the charge itself, delivered to the jury; which has not been placed on our paper-books, though returned with the record. In this charge the court says, “ the defendant (plaintiff in error) has given in evidence a warrant to Ephraim Steele, dated the 2d of September 1773; which he has taken some trouble (for what purpose we know not) to prove to be descriptive. That from marks of a survey on the ground, and some rough drafts of interference found in the deputy-surveyor’s office, wo may presume there probably was a survey on this warrant in the year 1773; but we have not the proper and legal evidence of such a survey having been made; nor is it very material. But, to make the best of the defendant’s case, we will assume that the warrant of E. Steele is descriptive, and that a survey was legally made upon it at that time, (which never has been returned,) which includes the land in dispute. He has also shown a warrant to John M’Kee, dated the 1st of February 1793, on which an assistant deputy made the survey, up to the boundaries of wh.ich the plaintiff (defendant in error) claims. This survey was also never returned; but the deputy-surveyor, after making a draft of it in his office, (which we have in evidence,) and showing that a portion of it was covered by the survey of E. Steele, and making a calculation of the portion not so included, seems to have done nothing further in the matter.
“ The defendant’s counsel, in one portion of his argument, assumed (though he denied it in another) that, the plaintiff was the owner, or claimed under the warrant of John M’Kee, and had no right to go over the reduced boundaries of it, as stated on the survey, he has given in evidence.
“ Let us assume that James M’Kee was the owner of the warrant of John M’Kee; that it was purchased at sheriff’s sale by Bausman, under whom the plaintiff claims; and that they have always claimed to hold under the John M’Kee’s warrant; and I have no doubt, that this is the fact; and I think the jury, after this length of time, (upwards of forty years), finding the plaintiff, and those under whom he claims, tiventy-eight years in possession, and claiming the land under, and by virtue of this warrant, and no other person pretending a right to it for forty years, might justly presume' that James M’Kee was the owner of the warrant in the name of John [523]*523M’Kee, and that the plaintiff is entitled to have it returned for his use, unless some one has a better title. Taking this to be the case, the defendant has made his case no better. He pretends(npit^ ship of the Steele survey. In 1793, when John M’Kee’s warrant was taken out and surveyed on the ground, twenty years had elapsed since the warrant and survey of Steele, without its having been returned, or one act of claim or ownership-having been made under it, that we have any knowledge of. In 1793, the commonwealth would have had a right to treat that warrant as abandoned, and any other purchaser would have had a right to take it: John M’Kee, therefore, in 1793, had a right to treat the land as vacant, and having had a portion of it included in his survey, the deputy-surveyor could have no right, out of his own mere notion, to cut out of it the best portion, and reduce M’Kee’s survey down to seventy acres without his leave; nor do I see that there is any sufficient evidence, that the surveyor had such intention, even if he had the right. He never returned the survey, nor have we a survey prepared for re-return with this ground cut off. On the contrary, we have only a draft, showing the survey as made for M’Kee, and the interference of Steele; and a calculation of the part of M’Kee interfered with. It was his duty to show these interferences in his return, if he had made one. What evidence is there, that those claiming under this warrant and survey, ever assented to have this portion cut off; or abandoned their claim to it? In 1S00, this land is levied on as James M’Kee’s, describing the very land now in dispute as part of it, viz., “ waters, improvements.” In 1801, Nicholas Bausman purchased at sheriff’s sale under the same description.
“In February 1808, N. Bausman’srepresentativesleased thelandlo John Shuke, who, from that time, claimed to this very line in dispute, pointed it out to the defendant as the line of M’Kee’s warrant, to which he claimed; defendant bounded his improvement claim upon it, and never offered to go over it, till some twelve or fourteen years after-wards, when he got it into his head, that because the survey of E. Steele was twenty years older than M’Kee’s, ergo, he, the defendant, who had treated it as abandoned, had a right to claim up to the lines of it.
“ In either view of the case, therefore, if you believe the witnesses and the testimony, the plaintiff is-entitled to recover.” After thus advising the jury, the court repeat the first point of the plaintiff in error, as stated above, and in answer thereto, say, “As the court have already informed you, this is not the law. It matters not, whether Steele’s warrant was descriptive, or not, it might justly be considered as abandoned in 1793, when M’Kee’s warrant was surveyed. And if plaintiff’s claim, when he took possession in 1808, was merely as an improver, and adverse to M’Kee’s warrant, he had a right to treat them both as abandoned; and quacunque via data, he has a right to recover in this case, if you believe the testimony.”
[524]*524The question presented here is, whether the owner of a warrant for land specially described therein,upon which the purchase money has been paid to the state, and a survey made thereon, without being returned into the surveyor-general’s office, or any thing more whatever being done, either in regard to it or the land, for the space of nineteen years and upwards, is still to be considered as having a good subsisting right or title to the land included within the survey: or, whether he is not to be considered as having abandoned his survey and claim to the land embraced within it. Though the court below speak of the warrant in the name of E. Steele having been abandoned, it must be understood as meaning only an abandonment of the land surveyed under it, and not of the warrant itself: because, it cannot well be supposed, that the owner of such warrant would abandon the warrant; as that, would be giving up all claim for and on account of the money paid by him to the state for it. He may, notwithstanding he has relinquished his claim to the land surveyed under his warrant, seeing it has never been returned into the surveyor, general’s office, have it surveyed upon other land still' remaining unappropriated, and thus obtain full satisfaction for his money, and a right to the same quantity of land mentioned in his warrant.
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[522]*522The opinion of the Court was delivered by
Kennedy, J.
The plaintiff in error was the defendant below; and the first error assigned, which is the only one that raises a question of sufficient importance to make it worthy of particular notice, is founded upon the charge of the court to the jury in answer to the plaintiff' in error’s first point. By this point, the court was requested to instruct the jury, that “if the warrant of Ephraim Steele be special for the land in dispute, and duly surveyed, and the land in dispute be within that survey, the plaintiff cannot recover from any title shown or set up in this case.” In order to bring to view the whole of the judge’s answer to this point, it is necessary to refer to the charge itself, delivered to the jury; which has not been placed on our paper-books, though returned with the record. In this charge the court says, “ the defendant (plaintiff in error) has given in evidence a warrant to Ephraim Steele, dated the 2d of September 1773; which he has taken some trouble (for what purpose we know not) to prove to be descriptive. That from marks of a survey on the ground, and some rough drafts of interference found in the deputy-surveyor’s office, wo may presume there probably was a survey on this warrant in the year 1773; but we have not the proper and legal evidence of such a survey having been made; nor is it very material. But, to make the best of the defendant’s case, we will assume that the warrant of E. Steele is descriptive, and that a survey was legally made upon it at that time, (which never has been returned,) which includes the land in dispute. He has also shown a warrant to John M’Kee, dated the 1st of February 1793, on which an assistant deputy made the survey, up to the boundaries of wh.ich the plaintiff (defendant in error) claims. This survey was also never returned; but the deputy-surveyor, after making a draft of it in his office, (which we have in evidence,) and showing that a portion of it was covered by the survey of E. Steele, and making a calculation of the portion not so included, seems to have done nothing further in the matter.
“ The defendant’s counsel, in one portion of his argument, assumed (though he denied it in another) that, the plaintiff was the owner, or claimed under the warrant of John M’Kee, and had no right to go over the reduced boundaries of it, as stated on the survey, he has given in evidence.
“ Let us assume that James M’Kee was the owner of the warrant of John M’Kee; that it was purchased at sheriff’s sale by Bausman, under whom the plaintiff claims; and that they have always claimed to hold under the John M’Kee’s warrant; and I have no doubt, that this is the fact; and I think the jury, after this length of time, (upwards of forty years), finding the plaintiff, and those under whom he claims, tiventy-eight years in possession, and claiming the land under, and by virtue of this warrant, and no other person pretending a right to it for forty years, might justly presume' that James M’Kee was the owner of the warrant in the name of John [523]*523M’Kee, and that the plaintiff is entitled to have it returned for his use, unless some one has a better title. Taking this to be the case, the defendant has made his case no better. He pretends(npit^ ship of the Steele survey. In 1793, when John M’Kee’s warrant was taken out and surveyed on the ground, twenty years had elapsed since the warrant and survey of Steele, without its having been returned, or one act of claim or ownership-having been made under it, that we have any knowledge of. In 1793, the commonwealth would have had a right to treat that warrant as abandoned, and any other purchaser would have had a right to take it: John M’Kee, therefore, in 1793, had a right to treat the land as vacant, and having had a portion of it included in his survey, the deputy-surveyor could have no right, out of his own mere notion, to cut out of it the best portion, and reduce M’Kee’s survey down to seventy acres without his leave; nor do I see that there is any sufficient evidence, that the surveyor had such intention, even if he had the right. He never returned the survey, nor have we a survey prepared for re-return with this ground cut off. On the contrary, we have only a draft, showing the survey as made for M’Kee, and the interference of Steele; and a calculation of the part of M’Kee interfered with. It was his duty to show these interferences in his return, if he had made one. What evidence is there, that those claiming under this warrant and survey, ever assented to have this portion cut off; or abandoned their claim to it? In 1S00, this land is levied on as James M’Kee’s, describing the very land now in dispute as part of it, viz., “ waters, improvements.” In 1801, Nicholas Bausman purchased at sheriff’s sale under the same description.
“In February 1808, N. Bausman’srepresentativesleased thelandlo John Shuke, who, from that time, claimed to this very line in dispute, pointed it out to the defendant as the line of M’Kee’s warrant, to which he claimed; defendant bounded his improvement claim upon it, and never offered to go over it, till some twelve or fourteen years after-wards, when he got it into his head, that because the survey of E. Steele was twenty years older than M’Kee’s, ergo, he, the defendant, who had treated it as abandoned, had a right to claim up to the lines of it.
“ In either view of the case, therefore, if you believe the witnesses and the testimony, the plaintiff is-entitled to recover.” After thus advising the jury, the court repeat the first point of the plaintiff in error, as stated above, and in answer thereto, say, “As the court have already informed you, this is not the law. It matters not, whether Steele’s warrant was descriptive, or not, it might justly be considered as abandoned in 1793, when M’Kee’s warrant was surveyed. And if plaintiff’s claim, when he took possession in 1808, was merely as an improver, and adverse to M’Kee’s warrant, he had a right to treat them both as abandoned; and quacunque via data, he has a right to recover in this case, if you believe the testimony.”
[524]*524The question presented here is, whether the owner of a warrant for land specially described therein,upon which the purchase money has been paid to the state, and a survey made thereon, without being returned into the surveyor-general’s office, or any thing more whatever being done, either in regard to it or the land, for the space of nineteen years and upwards, is still to be considered as having a good subsisting right or title to the land included within the survey: or, whether he is not to be considered as having abandoned his survey and claim to the land embraced within it. Though the court below speak of the warrant in the name of E. Steele having been abandoned, it must be understood as meaning only an abandonment of the land surveyed under it, and not of the warrant itself: because, it cannot well be supposed, that the owner of such warrant would abandon the warrant; as that, would be giving up all claim for and on account of the money paid by him to the state for it. He may, notwithstanding he has relinquished his claim to the land surveyed under his warrant, seeing it has never been returned into the surveyor, general’s office, have it surveyed upon other land still' remaining unappropriated, and thus obtain full satisfaction for his money, and a right to the same quantity of land mentioned in his warrant. This is in conformity to the rule and the practice which has ever obtained at the land office; but, if all right of the owner to the warrant itself be once abandoned or relinquished, it would be difficult, perhaps, for the warrantee hereafter to secure a right or title to any land by means of it.
It must, however, I think, be admitted, that at one time, owing to the particular situation of the country, a great portion of it being wild, unsettled, and indeed it may be said, unappropriated, and the land office having been closed during the revolutionary war, great indulgence was conceded to warrantees and locatees of lands, in not requiring-surveys made thereon, to be returned; so that if a survey were made upon a descriptive warrant or location within a reasonable time, after taking it out, embracing the land called for in it, the return of it into the surveyor-general’s office did not seem to be regarded as of much importance towards securing the right of the party to the land so surveyed: and it was considered sufficient to enable him to hold the land, without a return thereof being made within any definite period, especially, if the deputy-surveyor had been paid his fees for doing so. See Lessee of M’Kinney v. Houser, 2 Smith’s Laws 190; Lessee of Lauman v. Thomas, 4 Binn. 51; M’Cullough v. Wallace, 8 Serg. & Rawle 181. This notion seems to have rested mainly upon the ground, that as the deputy-surveyor was the agent of the state, and it was his duty in such case to return the survéy, the owner of it ought not, therefore, to be injured by his neglect. Lessee of Lauman v. Thomas, 4 Binn. 59. But, the judicial opinion, in conformity to the progress of legislative action on this subject, has undergone a change; and it is now settled, that in all cases, as well in the cases of warrants, as in that of locations, [525]*525whether descriptive of the land upon which they are surveyed or not, it is the duty of the owners to have the surveys returned into the surveyor-general’s office within some reasonable time, otherwise, subsequent purchasers or settlers may be preferred. Though it be the duty of the deputy-surveyor to make these returns, yet, if he refuse or neglect, the party interested has it fully in his power to compel him to do so, by making complaint to the surveyor-general or the board of property. That twenty years are not more than a reasonable time for allowing a return of survey to be made, even in the case of a descriptive warrant or location, must, I think, be admitted by every intelligent and disinterested mind. We, therefore, think, that the charge of the district court to the jury on this point was correct; and that it is in perfect accordance with the doctrine and principles established and laid down in the cases of Chambers v. Mifflin, 1 Penns. Rep. 74; Addleman v. Masterman, Id. 454: Star v. Bradford, 2 Id. 384; Zerbe v. Schall, 4 Watts 138, and Gloninger v. Goddard, ante, 209. We also think, that the direction of the eourt to the jury on the other points, made by the counsel for the plaintiff in error, and excepted to and assigned for error, was right, and therefore we affirm the judgment.
Judgment affirmed.