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THE

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

VOL. IV.-NO. 1.

EDITED BY SAMUEL HAZARD.
PHILADELPHIA, JULY 4, 1829.

LAND TITLES.

(From the Journal of the Senate of Pennsyľa.) Thursday, March 21, 1822. Mr. Conyngham, from the committee to whom was referred on the 6th instant a resolution relative to the improvement rights of actual settlers, and also to the act relative to the limitation of actions, made report, which was read as follows, to wit:

NO. 79.

of settlement of the possession." An improvement right is clearly defined to be not only the land under fence, but the contiguous woodland; an improvement right appears to have been well understood at this period by the land office department.

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Let us take this occasion to instance, in 1755, July 10th, when the lottery principle was introduced, declaring that such persons who are settled on the lands, without warrants for the same, may have liberty to lay The land titles of Pennsylvania are very intricate, and their rights on the land where they are so seated. We it is only by an inspection of the laws relating to prop- will now refer to several cases on record, to shew the erty, and decisions of the courts arising from conflicting opinions of the court, as to improvements and settler's claims and the construction of the laws relating thereto, rights. that a knowledge of them can be derived. The pro- Patrick Campbell, In this case the prietor of Pennsylvania was ever desirous of promoting >June, 1774. court said, "Did the emigration and the cultivation of the soil; and the legis- Benjamin Kidd, S dispute concern imlature of Pennsylvania, actuated by a fair and liberal proved lands only, the plaintiff should recover possespolicy, passed such acts as would tend to promote the sion. The encouragement given by the proprietors to improvement of the country, by encouraging its settle-improvements, have clearly evinced their assent to this ment. The history of land titles is to be obtained from usage, and is such a usage as amounts to an implied an examination of the laws and records, and vague and contract on the part of the proprietors, that they will unsatisfactory is the information thus afforded. It is a grant the lands to such persons on the usual and comlabyrinth, the intricacies of which the decisions of our mon terms. It is certain, however, that a right to imcourts unfortunately have not diminished; and so early proved lands will not carry an indefinite claim to adjaas 1755, did governor Morris declare in his message, that cent unimproved lands. Though the granting lands to "the management of the land office is pretty much a improvers be highly agreeable to the principles of rea mystery." son and natural justice, yet in strict law, such improved lands until an office right be obtained, must be consid ered as vacant."

nation of the minute books of the board of property, about the date of 1765, a person holding an improve. ment and residing thereon was entitled to the woodland adjoining, provided it did not exceed four hundred acres, and was vacant at the time the improvement was made.

That the proprietor was desirous of aiding the settlement of the country, will be evinced by an examination of the warrant system. In 1720, warrants were thus Chief Justice M'Kean has declared, that the proprie. drawn; "Whereas in pursuance of an agreement, made tors gave encouragement to improvements, and that by us five years ago, to settle and improve certain lands, they did grant lands to such persons who made improveyou are required to survey," &c. No trace of the arti-ments on the usual and common terms. By an examicle of agreement can be found, but sufficient evidence remains to shew the desire of the proprietor to procure the settlement of the state. It appears from a careful examination of the records, that at a very early period, persons established themselves on land, unauthorised by the proprietors, and made improvements thereon, and the proprietor and his agents not disturbing them in their possession, indicate an implied consent. Can a better or a more just reason be assigned for the origin of these improvement rights, than the acquiescence of the proprietor? Certainly not: for if it was contrary to the wish of the proprietor, why did he encourage the practice?

The committee cannot concur with the Chief Justice, that until an office right be obtained such improved lands must be considered vacant.

It cannot be considered vacant, in the opinion of your committee; because the moment a settlement or residence is made, the vacancy ceases to exist; for the owner of such improvements is entitled to a warrant for

provement as was vacant at the time such improvement was made, and is also compelled to pay tax not only for the same within fence, but the contiguous woodland. 27th November, 1779. The estates of the proprietaries were vested in Pennsylvania-early adventurers es

That the proprietaries of Pennsylvania gave a pre-four hundred acres adjoining and including such imference to settlement and improvement, is easily shown by the establishment of the application system, which benefitted the settler; inasmuch as on an application, no money was to be paid-whereas on a warrant, the practice was different, and on the land office being opened on the 7th of June, 1765, for the east side of the Sus-tablished themselves between the mouth of Lycoming quehanna, on the new plan, it was resolved, that the secretary give warrants to such persons as have built on and resided on the lands they apply for, and have a just claim to an improvement bringing a certificate of a neighboring magistrate or other satisfactory proof of the nature of the improvement and first settling thereof, when the interest and quit rent is to commence.

August 10th, 1765, in the minute book, there is this remarkable entry: "Whereas a piece of land applied for joins a settled habitation, the secretary is directed to grant a warrant, with interest and quit rent, from time VOL. IV.

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and Pine Creek-their rules and regulations, relative to the right of possession and boundaries, were afterwards recognized by law; and their decisions were received in evidence and confirmed by judgments of the courts. The acts of December, 1784, originated from the fair play settlement.

April 8th, 1785, section nine examine:

"All surveys to be returned on any warrant issued after the passing of this act, were to be made by actually going on the ground and measuring the land, and marking the lines to be returned on such warrants, after the

warrant authorizing such survey should have come to the hands of the deputy surveyor to whom it was directed."

The Supreme Court declared, in the case of Wright's lessee, vs. Wells-"But supposing it extended to all surveys on warrants issued after the passing of this act, though this case may fall within the words, it is evident that it is not within the spirit and intention of the act;" and again "suppose a surveyor receives a warrant and the land to be surveyed on it is bounded on three sides by the lines of other tracts, which he has surveyed before, it is not contended that he is obliged to run over these lines again; because it would be useless trouble, these lines having been run and marked by legal authority before-and yet he does not comply with the words of the act, which requires him to run the lines and mark them; but only with the spirit."

Brackenridge then says, "If the survey is not made after the warrant came to the hands of the deputy surveyor, it is absolutely void; for that part of the section is positive and directory."

The decision in the case of Wood vs. Ingersoll, is still more objectionable: "Although the directing part of the ninth section is not complied with, yet the survey is sufficient and it is of consequence, that there should be no misunderstanding on this point; or the titles of a vast number of persons, who have taken up land from the commonwealth and paid for them, would be shaken by a contrary opinion."

The ninth section of the act of April 8th, 1785. This section has not been construed by the words of the section, nor by its meaning, spirit and intention.

We agree with Judge Brackenridge, that if the survey is not made after the warrant comes into the hands of the deputy surveyor, such survey must be void, because it was not made according to positive law; and we can only suppose, that the majority of the Supreme Court were influenced by a desire to protect the landholder to the injury and prejudice of the settler. For in the following opinion, in the case of Hubley vs. Chew, the court expressly declare: "We cannot construe a law differently from the plain clear words of it, under any ideas of convenience or equity." Hence, then, it appears, that the court in the former opinion, were actuated by motives unworthy of their high station; and that they did construe the ninth section not from the plain, clear words of it, but from their ideas of convenience or equity.

Suppose a person settled and made an improvement on a piece of land containing about three hundred acres, the limits of which were surveys of adjoining tracts, well known and marked by the deputy surveyor, by actually going on the ground and marking them in pursuance of a warrant dated in 1775.

The tract on which the settler resided was claimed by a person who held a patent from the state, which patent issued in pursuance of a warrant or survey of the date of 1787; but the survey then returned by the deputy surveyor, was not made on the ground and marking the line of the tract after the warrant came into the hands of the deputy surveyor, which duties are absolutely required to be done and performed by the ninth section of the act of April 8th, 1787, the deputy surveyor making his return from the adjoining surveys, the drafts of which were in his possession.

An ejectment is brought against the person in possession, and he is, although he was settled on vacant land, evicted from such possession, by the construction of the law by the Supreme Court. Although the surveyor who returned the survey, as made on the ground and marked, violated the oath of his office and the title was fraudulently obtained.

The unfortunate man who settled and improved the land under the faith and protection of the law of the commonwealth, who violated no law, who committed no wrong; who on the contrary, lent his aid to improve the state, is thus compelled, by a decision of

the Supreme Court, to abandon the fruits of his industry or improvement to which he was attached because it was affected by his own labor, contrary to every principle of justice, equity and sound policy.

In the opinion of your committee, any title derived from an office grant, which was obtained without an actual survey on the ground, by the deputy surveyor, or a person legally authorized to make such survey, and marked trees corresponding to the date of the survey, is nothing more than a blank sheet of paper; for such title is contrary to law and can give no title to the holder for such land, so claimed, must in every view in which it can be taken, be considered as vacant.

If the legislature were to connive at a practice like this, your surveys hereafter would be made in the closet, and would lead to such consequences which would be fatal to the settler, disreputable to the legislature, and injurious to the character of your state. If we pass laws, we must support them; and if the Judges will not construe the laws agreeably to their words and meaning, the legislature must remind them that they are not omnipotent.

Hubley's lessee vs. Chew:-The Court, "We disclaim all legislative powers; but it will not be denied, that we possess the right of putting such construction on the acts of the legislature as appears to us best to accord with their intention, either express or implied.We cannot construe a law differently from the plain, clear words of it, under any ideas of convenience or equity."-(How can this opinion be reconciled with that given in the case of Wright's lessee us. Wells?)— The court have declared, in several cases, that the default of the deputy surveyor, in not returning the survey to the proper office, shall not be imputed to the person in whose favor the survey has been made-the latter depends on the actual lines on the ground, which, in fact, constitute a survey-the field notes, drafts, or return are merely evidences of it.

In the case of Quinn's lessee vs. Nichols and others, the Court thus says: "This act of March 26th, 1785, is an excellent safeguard to landed possessions, and highly beneficial to the community; and should be constru ed liberally"—and by their very liberal construction of this law, the settler has too frequently suffered.

What shall be deemed a settlement is stated in the act of December, 1786. By a settlement, shall be understood, 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, or by going into the military service of the country, during the war-but that no such settler shall or may have the pre-emption of any tract exceeding four hundred acres, by reason of any such settlement.

The evident intention and meaning of the legislature, as it relates to possession or improvement, is clearly shewn and evinced by the expression contained in this act, by the words themselves.

The expression from time to time is clearly in favour of the settler: and the legislature have thus declared that they consider that settlers have a right to any land they may think proper to claim by virtue of their settlement, provided it does not exceed four hundred acres; that is, with the improvement and woodland adjoining.

Cluggage and others against the lessee of Thomas Duncan. Oct. 3d, 1814. It was given in evidence, that Lawrence Peterson improved in 1768, a tract of land, cleared and fenced in between three and five acres, on which he built a cabin and raised corn; that Jacob Hare made an improvement adjoining Lawrence; and some time after, when Armstrong was in that county, he agreed to take out locations for each of the tracts and to have them surveyed for them-at this time, Hare had raised corn and cleared and fenced two or three acres. Hare and Peterson built their cabins for the purpose of holding the land, but were driven off by the Indians, about a year after.

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The defendants also offered a variety of evidence, to shew that they had been in the actual possession of a part of the land in question for more than twenty-one years, previous to the commencement of the suit.

Lessee of Thomas Duncan claimed under an application of November 4th, 1766, No. 1812-by Lawrence Peterson, 4th January 1767; a survey was made under this location, by Tea, the deputy Surveyor, but it was never returned. It was proved that Armstrong had paid the surveying fees-the land was sold under a judgment as Armstrong's and purchased in by T. Dun

can.

4th of August, 1801. The board of property granted an order to re-survey for Thomas Duncan. A survey was then made and duly returned Judge Walker charged as follows: "The facts of superintending a surwey and paying the fees of surveying have always been considered prima facia evidence of ownership."

Again-"That as to all the land in possession of Francis Cluggage, for twenty-one years previous to this suit, the plaintiff was barred by the act of limitation-all the lands actually within the fence of Francis Cluggage or the defendants, will be protected by twenty-one years of adverse continued possession, prior to the institution of this suit. We are of opinion that the sale does west the title in Duncan."

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and if Kyle has no title by his own improvement, he can derive none from his purchase of Newkirk.

Question to the court.-Whether two verdicts and judgment, in favour of the defendants or those under whom they claim, and seventeen years acquiescence by the plaintiff, are not a bar to this ejectment. "Nothing less than twenty-one years adverse possession is a bar by our act of limitation." Kyle's improvement was made many years prior to White's survey; and because Kyle or George Gabriel, under whose improvement Kyle claimed, did not apply for a warrant in pursuance of a promise made by Secretary Peters, to Gabriel; and as White had obtained a warrant previously to Kyle, and had the lands surveyed in pursuance of that warrant, yet the court decided that the judgment of the court of common pleas be reversed.

See Binney's Reports, volume 1st, page 248. January 2d 1808, Kyle and White claim under improvements neither of them can derive title from the date of their improvements, because they were made against law on lands not purchased of the Indians.

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and a half acres surveyed-that is, two hundred and sixty two and a half beyond what the warrant called for. The proprietary agent in 1765, and the proprietary board of property in 1768, restricted White in the quantity which would leave two hundred and twentyfive acres to Kyle. Kyle's claim was certainly the ground of this restriction-a survey of three hundred on each one hundred acres warrant, would be going on the ground of two improvements, which was the case here." White and others against Kyle's lessee.

White ought to have the preference; because he has the oldest warrant and survey." To put this case in the proper point of view, we offer the following extract from Brackenridge-That the accommodation of settlers and the improvement of the country, would seem Chief Justice Tilghman, in his opinion thus says-"I to have been the early policy of the proprietaries, will agree on this point with the court of Common Pleas-appear in the usage of granting lands in small quantities. "That as to all the land which was in the actual posses- White had two warrants for one hundred acres each, sion of Francis Cluggage for twenty-one years previous- and there would be good reason to indulge him in a surly to the institution of this suit, the plaintiff was barred vey of three hundred acres, which then or since had beby the statute of limitation. Cluggage had no survey-come usual; but here was five hundred and sixty two therefore there was nothing to which his possession attached but his inclosure"-the judgment was affirmed. Your Committee cannot suffer this case to pass unnoticed and without expressing their disapprobation of the opinion of the Court of Common Pleas, as well as that of the Supreme Court. The opinion being contrary to reason, policy, law, and the usage of the land-office.Your Committee are decidedly of opinion, that the improvement of Francis Cluggage gave him a legal right to all the land included in the re-survey of Thomas Duncan; because, by virtue of an improvement right, the owner of such right could hold four hundred acres by virtue of a warrant covering his improvement and the adjacent woodland, provided that such land was vacant at the time such improvement was made: and if Francis Cluggage was entitled to the improvement under fence, he was also entitled to all the rights, privileges and usages which such improvement right could confer; and by virtue of such right, Francis Cluggage could, at any time, take out a warrant for the whole of the land, included in the survey and could hold such land agreeably not only to the several land laws, but to the custom and usages of the land office.

We are decidedly of opinion, that the possession attached not only to his enclosure, but to the Woodland adjoining, which Cluggage claimed by his improvement. The next case to which we would direct your attention is, White and others against Kyle's lessee-June 10th, 1815. It was given in evidence that Kyle made an improvement on the lands previous to the purchase from the Indians, but it was declared by the court, that it would not give any equity, or vest any title. Question-whether James Kyle's taking a warrant on the 3d of June, 1762, adjoining lands of William White, without calling for any improvement, was not a relinquishment of an equity founded on an improvement on that land?

Answer by the court-James Kyle's taking a warrant without calling for an improvement, is not conclusive evidence that he had abandoned all claim under his improvement.

Question. Whether the sale by Henry Newkirk to Kyle in April 1754, of the lands not then purchased from the Indians, can be of any avail in law or equity. By the court. "The purchase of Newkirk, is of no avail;

Remarks.—The Judges of the Supreme Court, altho' they admit the encouragement given to actual settlers, yet the court are unwilling to give a preference to an improvement when put in competition with an improvement covered by a warrant or survey; although that improvement was the oldest, yet unprotected by a warrant.

Kyle and White claimed by improvements and by promises of warrants, from Secretary Peters. The first promise was made to Kyle; consequently Kyle was entitled to at least three hundred acres including his settlement by virtue of such promise.

White by his two warrants could only hold agreeably to the usages of the land office, not more than three hundred acres; as each warrant called for only one hundred acres; and we insert the opinion of judge Brackenridge, in which we heartily concur, because that opinion was founded on the practice of the land office, and a contrary decision would result in the most mischievous consequences, as tending to destroy and render insecure the rights of the settler, and to give to the warrant holder a larger amount of land not called for by the warrant and to which he would not be legally entitled.

M'Coy vs. The Trustees of Dickinson College, 1818, June.

The Trustees of Dickinson College, the plaintiffs, claimed under an application, survey and return of survey,but no patent. When the plaintiffs had finished their evidence, the defendant offered to shew possession in himself adverse to the plaintiffs, from the year 1787 to the commencement of the suit. This evidence was rejected by the court. Whether the evidence was legal was now the question.

Opinion of Tilghman.

In the case before us, the survey was returned the 28th of August, 1772; and from that time the estate was

subject to the act of limitation. I am very clear therefore that the defendant's evidence ought to have been received. At the same time, I desire to be distinctly understood that I give no opinion, nor have formed any opinion, beyond the point immediately decided. The defendant's evidence ought to be received; but what will be the consequence of possession taken without title as to the extent of possession, or whether such possession will in law be extended beyond the actual inclosures of the occupant, is a question not now before us. The consequence of laying down general principle on the act of limitation, are so important that I hold it my duty to be extremely cautious, of intimating opinions on points out of the record. I am of opinion the judgment should be reversed.

The above opinion has been introduced here for the purpose of shewing the extreme caution of the supreme court in giving an opinion as to the nature of an improvement right.

Hall and others vs. Powell, 1818, October, 5th. Duncan. As it respects the operations of the act of limitation every decision, every construction on the law, is most important, for it extends to every part of the state, and embraces the rights and possessions of every

man.

When a man claiming by improvement, enters on the land of another, and has not his pretensions marked out by lines or a survey, he is only protected so far as is covered by his buildings and improvements, if there is neither survey made nor lines nor boundaries of such improvement. His possession does not extend beyond his actual occupancy by enclosure and exclusive possession-it is difficult to conceive how the protection by limitation can extend further and protect possession which only exists in the imagination and mind of the improver, and has assumed no visible notorious, corporeal, tangible substance.

The court wish it to be understood, as not giving any opinion how far one entering on the land of another, without official right, but merely claiming by right of possession, is protected by limitation beyond his actual inclosures, though he has lines run or a survey made and his boundaries ascertained. Judgement must be affirmed.

Branyon vs. Flickénger, 1818, October 10th. Tilghman-Extracted from his opinion in this case to show the definition of a settlement:

"In order to constitute a settlement there must be a residence on the land with the intention of making it a place of abode and the means of supporting a family. The Legislature has manifested a great anxiety to have the vacant lands settled, and for that purpose has given not only a preference but an exclusive preference to such persons as should reside on the land and with their families. There can be no commencement of a legal title, without some act on the land with a view to residence and the support of a family; and the first stroke of the axe or the farrow of the plough, with these views is the commencement of a settlement, which if persevered in according to law, will end in a good title. This is the true construction of the law of 22d September,

1794."

We coincide in the opinion of the chief justice, and have introduced it here in order to show that he is aware of the desire of the Legislature to have the vacant lands of this Commonwealth settled, and that he has eloquently alluded to the rise and progres of a settlement -and we regret that he has so frequently departed from as correct a construction of the other land laws, Porter vs. M'Ilroy, October 5, 1818.

Judge Gibson,-Extract from his opinion. "The taking a warrant for and having a survey made of a less quantity, than a settler is entitled to, but not returned, is not conclusive evidence of an intention to abandon the part not included. It is immaterial to the state whether a settler obtains his quantity by more than

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This case, and several others depending on the act of limitation, have laid over to give the court an opportunity of confering and giving a construction to the act out of which so many important questions have grown. I have been consulted on the title, and will avoid giving any opinion on the merits of the conflicting claims, and confine myself to an abstract question of law, and consider how far this act protects one who entered on a tract of land duly surveyed, and has resided within the lines of the survey, more than twenty-one years, against the rightful owner. Had there been a difference of opinion between the judges who have just delivered their judgements; I would not consider myself at liberty to give an opinion that would turn the scale; but as they agree, & it is very desirable should be considered in a full court, I have yielded to the wishes of the Chief Justice and my brother Gibson, in expressing my sentiments. While at the bar, I have looked forward to the time when this question would become one of great and serious importance; and had considered it with some care; and since with anxious attention. It has been attempted to involve it with the right of settlement. This right rests on a solid foundation, not now to be shaken; and is to be traced to a very early period of the province. Of the possession, what ever may have been the moving consideration with the proprietors, it is certain they gave a preference to settlers on their unappropriated lands. This usage grew into a right of preemption, recognized by them and their officers, and was sanctioned by many judicial decisions, prior to the revolution. This usage was well understood, and has since been supported by positive law; but neither the usage nor the law gave any sanction to any entry into the lands which had before been disposed of. The lands which were open to settlement, were vacant, unappropriated lands. After appropriations, neither the proprietors nor the state had power to sell and dispose of them again, Where there had been a previous disposition, the settler could gain no right of pre-emption. No one could give a pre-emption to that which had already been sold.— The man who has a legal survey, has not only acquired a right to the possession of all the lands within his survey, for it is a principle of the common law,that the possession and the right go together,the owner is never deemed out of possession until another has obtained an adverse possession, when the possession is vacant. Trespass, which is a possessory action, will be against a wrong done; it is the close of him who has the right, as the principle of the common law prevails in all the states of the Union, where the question has been agitated. In New York it has often been decided, that trespass will lie by the owner against the intruder into wild and uncultivated lands. 8 Johns, 265-9 Johns, 385-12 Johns, 182-15 Johns, 118, and in Massachusetts, proprietaries of Kendrick vs. Croll,a survey was held to give the owner such possession as would support the action of tresspass, tho' he may elect to be disseized, 1 Massachusetts 284, and bring his ejectment. Yet the act of entry does not amount to a disseizin. And in this state in Brown vs. Swift, 2d Sergeant and Rawle,439, it was determined that the law cast the possession on the owner of a survey reurned of all the land contained within it. Seizen and possession continue in the owner, until he is disseized This is a doctrine of law, and familiar to those acquainted with its first rudiments. Possession and right are presum ed together-the rightful owner, in the presumption of

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LAND TITLES.

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gave him the best right to all the land; a fortiori, he must have the best right to the land not included in the actual close of the second patentee; for by construction of law, he has the oldest seizin as well as the oldest patent-and in Barr vs. Gratz, 4 Wheat 213, the clear and broad principle is established where an entry is made, without title, the disseizor is limited to the actual occupancy, and that a patent issued for vacant land, by operation of law, vests the constructive, actual posession of the whole, in the patentec, and consequently, so far as actual adverse occupation extended and the disseizor run and no further. It follows that an adverse possession is always negative, when the party claim

sion: Adams 47. That there must be a disseizen, and that strictly proven, for the statute never run against a man until he is actually outset.

If these are the doctrines of law, the right conferred by twenty one years possession, where the entry is without color of title, which every entry into lands duly surveyed is, must not only be adverse, but marked by different boundaries or actual occupancy-a real enclosure,definite and positive, notorious and exclusive. The question is free from all embarrasment, on the ground of right, by settlement with the possession. The misconception has arisen from confounding the right with the extent of possession. The inquiry is not on the right of the parties; the defence under the limitation act, supposes the absence of right in the party setting it up. One who has no settlement right, has nothing but a naked possession; for he who enters on the appropriated lands of another, enters without color of title, as much as if he had entered into an unoccupied house or uncultivated city lot. The law knows no difference-courts can make no distinction; the survey and lands of a man are held by the same tenure, secured by the same laws, situated on the Susquehanna as lots in the city of Philadelphia:the rights are the same whether the possession be on the Dela ware or on the Allegheny.

law, is in the constant possession, until that possession is adversed or interrupted and exclusively possessed by another. A wrongful possession cannot be extended by construction. Constructive possession cannot be extended by construction--Constructive possession accompanies the right. It is a construction in terms, that a man by wrong, should have any right, and that this right by wrong, should be extended by construction. There cannot be two conflicting constructive possessions, one in the owner, the other in the trespasser: the right always draws to it the possession, and it there remains till siezed by the wrong doer, whose possession is strictly possessionalis; who must necessarily be confined to what he has grasped, his real and actual possession; being title has never, in course of law, been out of possesyond that no length of time will protect him, because beyond that the owners possession never has been changed. It always, in contemplation of law, is continued in him-these are the dictates of common sense and common justice, and of common law; and if they need authorities to support them, authorities abound in the decisions of the courts of the several states and of the supreme court of the United States. In New York, 1 Johns 150-Johns 230--Johns 263-Johns 381-Johns 385-Johns 184-Johns 293;-in Connecticut, Day 498 -Massachusetts 1st, Mass. 483-4 Mass. 416-in the first of which cases the court unanimously decided, that in order to divest the owner of that possession which the law cast upon him, there must be an actual occupation to the exclusion of the rightful owner; and that to extend the principle, relative to adverse possession, beyond the case of an actual resident, and consequently exclusive possession, would be of the most dangerous consequences and authorize trespass by law. In Maryland, Reynolds-see Hall's Journal, and in Donaldson vs. Beaty, 3d Harris and M'Henry, 625-where the law is distinctly laid down, that where a person claims only, without showing any title, he must shew an exclusive adverse possession, by enclosure, and his claims cannot extend beyond his inclosure. In Virginia, Clay vs. White, where the patent was held to be the symbol of possession, and any person entering into that possession must be a trespasser; for the patent ipso facto confers seizin, because, as was said by Judge Tucker, it is founded on an actual survey of the land; and Judge Haine gives a number of instances where livery of seizen is dispensed with, and actual, corporeal possession, on the ground that acts of equal notoriety ought to have an equal and similar effect; and observes that the reason hold strongly, in a new country, where proof of actual possession might be difficult, and where in some sense a corporal investiture has always been made by entry and survey. In S. Carolina, 2 Bay, 495, where it is said that adverse possession is never presumed to defeat a grant, it must be actually proved and shewn, to rebut a prior title, in the same manner and degree of precision, as the plaintiff must shew a clear title in him be fore he can recover. The same principle was enforced in the District Court of the United States, for this district, in Potts vs. Gilbert.

In this state, see Cluggage vs. the lessee of Duncan: -The opinion of the court below was, that the act was a bar, to all land included within fence and no more.— This court pronounced that opinion to be right, the Chief Justice, observing that Cluggage had no survey, and therefore there was nothing to which he could refer but his inclosure. And lastly, to the decision, of the supreme court of the United States, in Green vs. Lytle, 8 Cranch, 280, it was there held that seizin was either by possessio pedis or by construction of law. The constructive seizin, indeed is sufficient for all the purposes of action or legal intendment, and Mr. Justice Story, in giving the opinion of the court says, we are entirely satisfied, that a conveyance of wild land, gives a constructive conveyance in deed to the grantee, and attaches to him all the legal remedies of the estate; & going on to another question, put by the court below, observes, that the first patentee had the better legal title; and his seizin presently by virtue of that patent,

Against this uniform train of decisions of our own courts the highest tribunals of justice in the several states, of the supreme court of the United States, there cannot be found one solitary decision-it would be a hard construction of a statute made for quiet possession, when the evidence of title might,from the lapse of time,be out of the power of the possessor, and to extend its protec tion beyond the actual possession, when the entry is without color of title. If this were not the law, a tresspasser by entering and cutting down a few logs for a cabin would acquire the possession of many hundred acres; nay more by the bare commission of a tresspass on a corner of several adjoining tracts of land, would give the possession of four hundred acres, his choice of the whole. We can easily understand what is ment by color of title-there may be, there too often are several office rights for the same tract of land-the holder of the younger enters this under color of title, and the difference is this: "Where one enters under color of title, his possession is co extensive with his title; but where one enters without any color of title, his seizin is confined to his actual possession." Judges of high character have, I know, entertained contrary opinions, and have decided that no length of time will give a right to him who en ters without color of title; but, on reflection, my judg ment is satisfied, that a possession so taken and continued for twenty one years, by actual occupation and inclosure, will bar the entry of the rightful owner, and give a right in the possession, subject to the right of the state for the purchase money; but that snch possession is not by construction, to be extended to other lands, part of the same survey, because the owner of the survey, in contemplation of the law, remains in the possession of every part that he has not actually been excluded from by the occupation of another. There is no solid reason, to support the position, that one entering without color of title, on a surveyed tract, in order to defend his possession, can resort to the metes and

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