Wilhelm v. Shoop

6 Pa. 21, 1847 Pa. LEXIS 83

• Court: Supreme Court of Pennsylvania
• Decided: May 17, 1847
• Status: Published

Opinion

Burnside, J.

The plaintiffs in error, who were plaintiffs below, claimed the land in question under a warrant from the late proprietors of Pennsylvania to Francis Gissler, bearing date the 17th of October, 1774, for one hundred and fifty acres of land, including a small improvement begun two weeks before, on the east branch of Armstrong’s Creek,' adjoining the Short Mountain, about nine or ten miles from the Susquehanna, in Upper Paxton township.

It was in evidence, that this warrant to Francis Gissler had been surveyed before the Revolution, by the proper deputy, Bartram Galbraith, but had never been returned into the ofiiee of the surveyor-general. The plaintiffs showed that the land had been taxed as unseated, from 1797 to 1805 inclusive, and paid by those under whom they claimed.

The younger Shoop claimed the land by an ancient resident settlement, and gave evidence that he was the first resident settler within the survey of Gissler; that he began to clear and fence as early as 1829; hewed logs for a dwelling-house, which he put up in 1830 or 1831, and from that period resided on the land with his family regularly, extending his improvements by clearing and cultivation.

John Shoop, the elder, early settled and resided upon, and claimed land adjoining the Gissler survey. His dwelling was about ten rods from the Gissler line, and he had cleared over the line a few acres, but when he had his boundaries designated, -he excluded the clearing over, and bounded his improvement on the line of the Gissler survey. The plaintiffs alleged that both the. Shoops, father and son, were settlers on the Gissler tract under them, and that John Shoop, jun., entered under the plaintiffs, and not adversely. This was the material inquiry in the case, and was a question of fact for the jury. , If the younger Shoop entered as a tenant of the plaintiffs, he remained and continued a tenant, and was bound to deliver up the possession to his landlord. On the other hand, if he entered adversely, and claimed the land from his entry, then the plaintiffs, by their negligence in not having the Gissler survey returned, or having possession under the warrant, had lost all title to the survey. Parol evidence was given by both parties on this question. The plaintiffs’ counsel asked the court to instruct the jury, “ that, if they believed John Shoop, before he began to clear on this tract of land, went on it by permission of Henry Bachman, and that John Shoop, jun., also went upon this tract of land by permission of Henry Bachman, to clear and cultivate it, for the use of the land and the payment of the taxes for the whole tract, then the principle of law, that the survey must be returned within seven years, is not applicable to the case, and, therefore, the defendants cannot resist the plaintiffs’ right to recover the tract of land in controversy, on that principle.” 1

To this the court assented, and in the charge said, «The ground on which the plaintiffs rely to recover is, that they have given evidence sufficient to entitle them to recover against the defendants, who, the plaintiffs allege, went into possession under a contract in the nature of a lease from them, and under their title. This is denied by the defendants. The evidence on this subject is submitted to the jury.” This seems to me to be the material question in the cause, and is one of fact for the jury. If the jury believed from all the evidence, that the defendants went into possession of this land as the tenants of the plaintiff, and -under an agreement that they might clear land, have all the crops, and pay the taxes due on it for the use of the improved land, the defendants have not the right now, and in the absence of all title on their part, to deny the plaintiffs’ title, and prevent their recovery.

Upon the question whether the defendants went into possession under the plaintiffs or their agent acknowledging their title, such as it is, this suit depends. If the defendants did so enter, it would be not only unjust, but illegal for them to turn round, deny the plaintiffs’ title, and keep them out of possession of the land — and especially so since the defendants have made no advancement towards perfecting a title for themselves.

But if the defendants went into possession of this land adversely to the plaintiffs’ title, and not under it, the plaintiffs have failed to show such a title as will enable them to recover.

On looking carefully at all the evidence in the cause, the case was put fairly to the jury, and the points well answered. The plaintiffs’ warrant called for a small improvement begun two weeks before, on the East branch of Armstrong’s Creek, and adjoining the Short Mountain, about nine or ten miles from the Susquehanna river.- To me it is clear, that the improvement called for in the warrant was made for designation, not for title. In travelling in the woods looking for land at that day, the girdling of a few trees, or the cutting of a few boughs for a hunter’s cabin, was designated as an improvement. Tbe call was common in warrants before tbe Revolution; and was but little regarded by tbe deputy surveyor in tbe execution of tbe warrants. But if tbe warrant was precisely descriptive of tbe land surveyed, tbe law imposed a duty on its owner, to have it returned • into tbe land-office in a reasonable time. Tbe land-offices of tbe province closed on tbe 4th of July, 1776, and so remained until tbe 9th of April, 1781, when tbe legislature re-established them under tbe Commonwealth; 2 Smith’s Laws, 192. Tbe ninth section of that act required, that all lands heretofore surveyed under any grant, warrant, location, or office right, should be returned in tbe space of nine months from tbe passing of tbe act, with a penalty for refusal or neglect in tbe deputy surveyor, on application made to him by tbe owner, and his legal fees paid or tendered. Tbe time was extended by subsequent acts of tbe legislature. Tbe Commonwealth was indulgent to tbe owners of old office rights, and continued that indulgence until some settler entered, or a new warrant was obtained for tbe land. Tbe act of 1786 defined an improvement to be an actual resident settlement, with a manifest intention of making it a place of abode, and tbe means of supporting a family, continued from time to time.

Tbe evidence is clear, that John Sboop, jun., was tbe first resident settler on tbe land within tbe Gissler survey. When be entered, the Commonwealth was not prohibited by tbe Gissler warrant and survey, from granting the land to a Iona fide improver, of issuing a new warrant for tbe land as vacant. Tbe Gissler survey has never been returned; and nothing could protect tbe title of tbe plaintiffs under this warrant and survey, but an actual and continued occupation and possession of tbe land before any new right was commenced or acquired. The improvement called for in tbe warrant was merely descriptive, and not being continued, gave no title. All tbe other questions raised are of no moment — involving no principle of general importance, or which assist either party in tbe case under consideration. Judgment affirmed.