Kirkpatrick et al. v. Vanhorn et al.
| Decision Date | 01 January 1858 |
| Citation | 32 Pa. 131 |
| Parties | Kirkpatrick et al. versus Vanhorn et al. |
| Court | Pennsylvania Supreme Court |
Foster and Laird, for the plaintiffs in error.
Cowan, for the defendants in error.
We entirely concur with the learned judge, that the warrant of 18th January 1793, to John Moor, was not so descriptive as to locate itself and therefore to confer title from its date. The consequence was, that the plaintiffs' paper title to the land in controversy, commenced with the survey made on the 23d June 1819, which was subsequent to the date of the warrant and survey to John Hill, under which the defendants claim. On the face of the paper, therefore, the best right would seem to be in the defendants. The survey made of the Moor warrant in 1819, is called a resurvey, and recites a survey made March 19th 1794; but that survey, if ever made, was not returned into the land office, nor produced on the trial. It cannot, therefore, avail the plaintiffs. It is as much the duty of a warrant-holder to return his survey within a reasonable time, as it is to make it on the ground. The consequence of his negligence is, that he is postponed to an intervening right which is followed up with diligence.
The court were right, therefore, in making the plaintiffs' case stand on the early settlement and improvement commenced by Moor. It had no other foundation to stand on. And in respect to the rights of Moor as a settler, the instructions were, for the most part, unexceptionable. The answers given to the three first points of the plaintiffs were, however, qualified in two respects, which we deem erroneous.
1. They were such as to lead the jury to consider it the duty of the settler as against a subsequent warrantee to designate his boundaries.
2. They submitted the question of a consentable line without evidence.
A few observations on each of these heads, will express all that we consider it our duty to say of the case. As a general proposition, it is unquestionably true, that it is the duty of a settler to define his claim. Entering on vacant land of the Commonwealth he has a right to appropriate 400 acres and allowance, circumjacent to his improvement, in such reasonable shape as will best suit his purposes, regard being had to soil, timber, water, &c. And because he is a pioneer and generally poor, the Commonwealth has always regarded him with favour, giving him his own time to buy her title, and meanwhile treating his settlement and improvement as a good title against all the rest of the world Of course, it is the duty of a man so indulged and favoured, to lay off the land he means to hold, by lines on the ground, or by the adoption of natural or artificial marks already found there. It is due to the Commonwealth, that she may know what land is for sale, and to other purchasers, that they may not trench upon his pre-emption rights. But if he have failed to perform this duty, a subsequent warrantee or settler may compel him to perform it, by calling on him to designate his boundaries; when, if he neglect to do it, he is not admitted afterwards to complain, that land has been taken away from him which he intended to appropriate.
Now, to make an immediate application of these principles to the case in hand.
The plaintiffs claimed in virtue of John Moor's improvement, commenced in 1807; the defendants, under the warrant and survey of John Hill of 1818. As between an improver and a subsequent warrantee, the court were called on to declare the effect of the improvement. The improver had either designated his boundaries, or he had not. If he had, Hill could not take any of the land within them, unless they included more than 400 acres and allowance. If he had not, Hill should have called on him to designate them, before laying his warrant. It was not for him (Hill) to designate the extent of the improver's rights. But the answers of the court were such as to imply no duty on the part of Hill, whilst Moor's rights were made to depend more or less on the question of his designation of boundaries. It was not pretended Hill had called on Moor to point out the extent of his claim; yet, in answering the plaintiffs' second point, the court, instead of an unqualified affirmative, said, it was answered in the affirmative "if he (Moor) claimed the land in dispute, and designated his boundaries, and kept his claim to the entire quantity without any designation of limit short of the whole, and without any agreement or consentable line with the adjoining settler." It seems to us, that this was making the efficacy of Moor's settlement, as against Hill, to depend on his designation of boundaries. It was putting the plaintiffs to prove that Moor must have defined his boundaries, though...
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Powell v. Agricultural Ins. Co., of Watertown
... ... Rogers, 6 W. & S. 488; Bradley v. Grosh, 8 Pa ... 45; Jones v. Wood, 16 Pa. 25; Sartwell v ... Wilcox, 20 Pa. 117; Kirkpatrick v. Vanhorn, 32 ... Pa. 131; Jordan v. Headman, 61 Pa. 176 ... Jno. C ... Bane, for appellee ... Before ... Rice, P. J., ... ...