5 Binn. 77 | Pa. | 1812
Lead Opinion
The opinion of the court below was asked and delivered on five points stated in the record. On
The defendant gave in evidence sundry acts of ownership exercised on the land in dispute, which is principally woodland, from the year 1783 to the time of bringing this suit. And it appears that on the 17th of June 1808, an application was entered in the land office, for a warrant in the name of Ruth Thomas under whom the defendant claims, for talcing up this land, on which a survey was afterwards made. The application stated that Ruth Thomas claimed under an improvement commenced in the year 1783. The plaintiff claimed under a warrant issued the 29th of May 1742, to Stamper Bland, Elias Bland and John Bland, in right of Francis Stamper, which was laid and surveyed on the land in dispute, the 31st of December 1805. Taking the matter in the light most favourable to the defendant, the right under which he claims commenced in the year 1783. But what kind of right was it? Has the possession from that time been adverse to the commonwealth, so as to bar the commonwealth or its grantee? Surely not. If that kind of title bars the commonwealth by the act of limitations, then all persons who have taken possession of vacant land, may acquire title without payiug a cent; for if they are protected by the act of limitations, they have no need of obtaining a patent, The woodland in dispute was adjoining the cleared plantation of Ruth Thomas-, and if she, or others who owned the cleared land, had thought proper to trespass on the wmodland for fifty years without paying any consideration, or making any application to the land office, what remedy would there be at the end of the fifty years to compel payment of the usual purchase money, with interest from the time of the first cutting? I know of none, because it might be said that there never was any intention of purchasing. The most that can be said of this kind of title is, that it gives a right of preemption, in case the possessor thinks proper to complete the purchase; and that the possession in the mean time is not adverse to, but under the commonwealth. This I say, is the most that can be said of such a title, for I am not giving any opinion on it, but only stating
Concurrence Opinion
I entirely concur in the charge of the court, that a man is bound by the lines of his survey returned, and acceptance of a patent thereon, where there is no fraud; that the accidental clearing over the boundary of patented land vests no interest in the vacant lands of the commonwealth, and constitutes no improvement; and that the clearing of lands belonging to the commonwealth, without a bona fde settlement, vests no right by improvement.
A variety of decisions on these several points, has fully established the law. It remains to be considered, whether the plaintiff under the facts of this case, is barred by the limitation act of 26th March 1785. [His honour then stated the facts.]
Under these facts it cannot be asserted, that Ruth Thomas had an improvement on the premises in question, known to the laws and usages of this state. Its character is truly ascertained by the third section of the act of 30th December 1786, which conveys the correct idea of it, as far as my recollection extends. If any equitable claim could be derived by Ruth Thomas under the acts of those who preceded her in the possession of these lands, it is manifest that her equity originated under the commonwealth, and was not adverse thereto. That possession was no bar to the commonwealth, who might make an entry thereon, support
I am therefore of opinion, that the judgment of the Common Pleas be reversed, and that a venire Jadas de novo be awarded.
Judgment reversed.
