Syphers v. Meighen

22 Pa. 125

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1853
• Status: Published

Opinion

The opinion of the Court was delivered, September 27, by .

Woodward, J.

The paper-book contains none of the evidence in this case, and is otherwise so defective that we could not reverse the judgment even if it were' much more questionable than it appears to be in such light as we have. The plaintiff claimed the land under an improvement warrant which went back to March, 1807. The defendants claimed under Alexis Jackson, who commenced an improvement in August, 1804. As between improvers, the first comer must be first served—first in time best in right. But the plaintiff says the Jackson improvement gave the defendants a right to hold no more than four hundred acres and allowance, and that Jackson having once made his appropriation and then sold off 100 acres to Spragg, cannot extend his lines so as to embrace the land in dispute. In other words, that the 100 acres sold to Spragg are to be counted to Jackson as part of his four hundred.

To this it was answered, as we infer from the charge of the Court, and from such statements as we have concerning the evidence:

1. That Jackson sold to Spragg in 1804, and extended his lines to embrace the lands in controversy before the improvement was commenced under which the plaintiff claims.

2. That Stewart, under whom the plaintiff claims, and Jackson, recognized a certain run as the boundary between them, up to which those coming in under Jackson have continued to claim.

If such were the evidence, and such it was, unless we are misled by the paper-book, the plaintiff’s points were most conclusively answered. The Court said, Jackson’s sale to Spragg would not prevent him from going further west to make up his 400 acres, exclusive of his sale to Spragg, when there was no settler to gainsay him. Certainly not. The whole field was open to him. He was entitled to 400 acres, and so long as the land around him was unappropriated, he might change his lines to suit his convenience It would seem that the 100 acres were claimed under an elder right than his; and if, on finding this to be the case, he released them and took an equal quantity in another direction, a subsequent settler could not gainsay his act. Especially woiild such subsequent settler be estopped if he recognised and assented to a natural boundary which Jackson had adopted to define his amended claim. And even though that boundary included 20 acres more than the 400 and allowance, yet if the jury were satisfied the parties established the run as a consentable line, neither Stewart nor his alienees could cross it to take the 20 acres away from Jackson. As against the Commonwealth, Jackson would not have title, and a settler or warrantee under her might require him to locate his 400 acres and allowance so as to leave the 20 acres open to appropriation. But Stewart could not do this, though claiming under the Commonwealth, if he .had concluded himself by an agreed boundary. Such agreements, especially when made between first settlers, are favored in law as tending to peace and good neighborhood, and when they have accomplished these purposes between the original parties through a whole lifetime, succeeding generations must be content to abide by landmarks that come to them so sanctioned.

The instruction of the Court was a sufficiently distinct answer of the plaintiff’s points, and as favorable to him as he had a right to expect.

The objection to the deposition of Jacob Burley is too late. The deposition was taken in 1837, in a former suit, and read without objection. Now the objection is taken that the commission was directed to two commissioners, and executed by only one of them. The seventh rule of Court, taken in connection with the fourth, requires the prothonotary to give notice to the respective attorneys of the return of a commission, “and no objections shall be allowed at the trial, other than to the competency of the witnesses or to the relevancy or competency of the testimony, unless the party making them shall have given notice in writing to the opposite counsel of his intention so to do, and his reasons for so doing, within ten days after receiving notice of the filing.” We are to presume that the prothonotary did his duty, and as no notice of objections was served, the party has slipped his time and is concluded by the rule. The judgment is affirmed.