Joseph Barclay, Florence Colter and John Snowden, Plaintiffs In Error v. Richard Howell Lessee

CourtUnited States Supreme Court
Citation31 U.S. 498,8 L.Ed. 477,6 Pet. 498
Decision Date01 January 1832

ERROR to the circuit court of the United States, for the eastern district of Pennsylvania.

This was an ejectment originally instituted in the district court for the western district of Pennsylvania, and removed to the circuit court for the eastern district, under the act of congress of March 3, 1821; the judge of the western district having been counsel in a former ejectment, involving the same matter in controversy.

The defendant in error, the plaintiff below, claimed in the declaration, 'one messuage, a lot, or piece or parcel of land, lying between Water street and the river Monongahela, with the appurtenances situate and being in the city of Pittsburgh.'

Mr Justice Baldwin did not sit in this case, he having been of counsel for the defendant in error, in the circuit court.

The cause came on for trial at the circuit court for the eastern district of Pennsylvania at the April term 1829, and the jury found a general verdict for the plaintiff in the ejectment. The defendants prosecuted this writ of error.

On the trial, a bill of exceptions was tendered by the defendants to the ruling of the circuit court, as to the introduction of certain evidence, and also to several of the matters contained in the charge of the court; all which are particularly stated in the opinion of this court.

The case was argued by Mr Wilkins, for the plaintiffs in error; and by Mr Sergeant for the defendant.

Mr Justice M'LEAN delivered the opinion of the Court.

This suit was brought in the western district of Pennsylvania, to recover a lot of ground in the city of Pittsburgh, described in the declaration as lying between Water street and the river Monongahela. As the district judge could not sit in the cause, it was certified to the eastern district, under the act of congress.

The defendants in the court below appeared in behalf of the city and defended the action, on the ground that the entire slip of land between the north line of Water street and the river, was dedicated, at the time the town was laid out, as a street or right of way to the public.

The lessor of the plaintiff exhibited legal conveyances for the lot in controversy.

At the trial, various exceptions were taken to the ruling of the court, in the rejection of evidence offered by the defendants, and also to the charge of the court to the jury. These exceptions are brought before this court for consideration, by a writ of error.

The first assignment of error is, in substance, that the verdict being general, is void for want of certainty. That the finding of the jury did not settle the matter in controversy; and by consequence, did not authorise the judgment.

This must be considered as an exception to the sufficiency of the declaration; as any other matter embraced by it might have been considered on a motion for a new trial, but cannot now be noticed.

The description of the lot in the declaration is general, as lying between Water street and the river; but no doubt is entertained that this is a sufficient description. Formerly, it was necessary to describe the premises for which an action of ejectment was brought with great accuracy; but far less certainty is requisite in modern practice. All the authorities say that a general description is good. The lessor of the plaintiff, on a lease for a specific number of acres, may recover any quantity of less amount.

The rejection of the evidence contained in the depositions of Samuel Ewalt and John Finley, is the second error assigned.

To understand the force of this exception, it will be necessary to advert to a succinct history of the case.

There was vested in the Penn family a tract of land consisting of between five and six thousand acres that included the village of Pittsburgh, which at that time consisted of a small number of settlers, very few, if any of whom, had a title to the lots they occupied. This tract was denominated a manor, as was the practice at that time to call large tracts of land, which had been surveyed within the charter of the original proprietor of Pennsylvania. Being desirous of laying out a town at Pittsburgh, Tench Francis, who acted as the attorney of John Penn, Jun. and John Penn, addressed the following letter to George Woods, Esquire.

Philadelphia, 22d April 1784.

Sir—By directions of Messrs Penns, I take the liberty to request you to undertake the laying out of the town of Pittsburgh, and dividing all the other parts of the manor into proper lots and farms, and to set a value on each, supposing them clear of any kind of incumbrances, in doing of which, be pleased to make the proper inquiries, and ascertain the previous claims, pretended or not, of the present settlers, and all others set up. The whole of the manor being intended for immediate sale, I wish you would point out the best method to effect it; and if agreeable to you to fransact this business, inform me on what terms you will do it. All expenses, and your charges for making the above survey, I will pay, &c.

In the month of May or June of the same year, Woods laid out the town of Pittsburgh, and also surveyed into out lots and small plantations, the residue of the manor; and made return to his principal of a copy of the town plat and the other surveys. This return, and the whole proceedings of Woods, were sanctioned by the following letter.

Philadelphia, 30th September 1784.

Dear Sir—As attorney to John Penn, Junior, and John Penn, Esquires, late proprietors of Pennsylvania, I hereby approve of the plan you have made of the town of Pittsburgh, and now confirm the same, together with the division of the out lots and the other part of the manor of Pittsburgh. The several appliers, agreeable to your list furnished me, may depend on having deeds for their lots and plantations, whenever they pay the whole of the purchase money, &c. TENCH FRANCIS.


The original plat of the town of Pittsburgh, which was made by Woods, was given in evidence to the jury; from which it appears that the town was laid out into lots, streets and alleys, from the junction of the Alleghany and Monongahela rivers, extending up the latter to Grant street. With the exception of Water street, which lies along the bank of the Monongahela, all the streets and alleys of the town were distinctly marked by the surveyor, and their width laid down. Near the junction of the rivers, the space between the southern line of the lots and the Monongahela river is narrow, but it widens as the lots extend up the river.

It was contended by the defendants in the ejectment, that the before described slip of land was dedicated by the surveyor when he laid out the town, to the public as a street, or for other public uses. As the lot for which the ejectment was brought is situated in this narrow strip of land, the fact of dedication becomes material.

From the plan of the town, it does not appear that any artificial boundary, as the southern limit of Water street, was laid down. The name of the street is given, and its northern boundary; but the space to the south is left open to the river. All the streets leading south, terminate at Water street; and no indication is given in the plat, or in any part of the return of the surveyor, that Water street did not extend to the river, as it appears to do by the face of the plat.

The depositions of Ewalt and Finley were offered by the defendants, to prove the declarations of Woods at the time the survey of the town was made. Ewalt stated, that the survey was about to be commenced at a point which would have required him to remove his house, and that at his instance the place of beginning was changed. On a remonstrance being made by several persons who had assembled, that Water street would be too narrow, Mr Woods observed to the party, 'these houses will not remain or stand very long; you will build new houses and dig cellars, and bank out Water street as wide, till it comes to low water mark, if you please.' He observed, 'that this street, to low water mark, should be for the use of the citizens and the public forever.'

Finley states that Woods declared to the people of the town, that he would not change the old military plan; but that 'Water street should be left open to the river's edge, at low water mark, for the use of said town; that they, the citizens, might use the same as landings, build walls, make wharves, or plant trees at their pleasure.'

Several objections are made to the competency of this testimony.

It is insisted, that the declarations of Woods respecting the ground in controversy, did not come within the scope of his authority; and if they did, still, that they ought not to be received in evidence.

Woods had authority to fix upon the plan of the town, and survey it. He had the power to determine the width of the respective streets and alleys, the size and form of the lots, to mark out the public grounds, and to determine on every thing so far as related to the town, which would add to its beauty, convenience, and value. These were clearly within the scope of his powers, as they were essentially connected with the plan of the town, on which he was authorised to determine at his discretion.

But it is said that his acts, until sanctioned, were not binding upon his principal; and that as his principal was not present, his sanction, which was subsequently given, cannot be extended beyond what appears upon the town plat, which was returned by the agent.

The sanction, when given, related back to the original transaction; and gave equal effect to it, as if the principal had been present. So far as valuations had been made of the lots occupied by persons who had no titles, and who were to obtain titles on paying the prices fixed by Woods, it is very clear, that the principal could not be bound, by the act of confirmation,...

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