5 Watts 337 | Pa. | 1836
The opinion of the court was. delivered by
The first error assigned is in a bill of exception to evidence rejected by the court. The defendants below, who are the plaintiffs in error, offered to prove by Mr Chapman, the deputy-surveyor of the district, who made the survey locating the warrant of Gardinier, one of the plaintiffs in error, that at the time he was doing the same, and when he was about to run the lines between Marcy, the defendant in error’s improvements, and the Hartley survey, William Hartley, who at the time, or previously thereto, had
Tfie second error, though embracing four of the points, viz., the third, fourth, fifth and sixth, submitted by the counsel for the plain-? tiffs in error to the court below for their instruction to the jury on them, involve but one question; and that is, whether Marcy, the defendant in error, had a right to hold woodland within the compass ,of four hundred acres, including his settlement by virtue thereof, .and to prevent the commonwealth from granting it to Gardinier, though he only wanted the woodland for the purpose of getting the timber trees growing upon it; converting them into lumber, and then abandoning it without paying the commonwealth for it. The court below, according to their answers given to the third, fourth and fifth points, seem to have thought that he had such right; but, to the sixth point, they have answered as if they were of the opinion that he had not.
This inconsistency on the part of the court, in laying down the law to the jury, would of itself be sufficient to reverse their judgment. Because it is certain that their answers being given to the same questions, and being in direct contradiction to each other, both cannot be right. But how were the jury to determine which answer was right? And again, supposing that the jury adopted the right answer, how are we to ascertain that they did so? If we were at liberty to indulge in conjecture concerning it, it would perhaps be most reasonable to say, that they took that answer to be the law of the case which would seem best suited to support their verdict. But this is the answer which we think the court below ought not to have given. Although it cannot be questioned, but a settler upon land, not otherwise appropriated, has a right to extend his claim by virtue thereof, so as to include four hundred acres, besides the usual allowance of six per cent, for roads, &c., yet he can only do it by
Judgment reversed, and a venire de novo awarded.