271 Pa. 472 | Pa. | 1921
Opinion by
Plaintiff brought two actions in ejectment against the defendants to recover an island in the Delaware River,
It is conceded ejectment is the proper remedy to determine at common law whatever rights existed prior to the controversy before the Board of Property, relative to the property in dispute. Appellant does not claim through possession, settlement, improvement, warrant,
The question is novel in many aspects, but, following controlling principles laid down in early cases, we find no difficulty in reaching a conclusion. The decision depends upon the authority of the Board of Property and the rights, if any, obtained through an application order for warrant and survey, though the latter was never issued. The Board of Property is not a judicial tribunal in any sense: Blair v. McKee, 6 S. & R. 193, 205; Dunning’s Lessee v. Caruthers, 4 Yeates 13, 18; Sergeant’s View of Land Law, 172. Its proceedings were irregular, and, though it was attempted in colonial days to mate it an office of record, the proprietaries objected, considering the subject within their control. It proceeds without a jury and without much regard to form; its powers cannot be increased by construction, and, while the decisions of the Board of Property are receivable in evidence, it has no discretionary powers: Blair v. McKee, supra, 202. This positive statement must be modified, however, as its duties involve some discretion: Jones on Land Office Titles, 18. Its findings, if the defeated party has instituted his common law action within the time prescribed, are not binding on the courts; nothing can be done by it that will affect the right of any person or alter the nature of his title as it otherwise existed. It might assist incomplete titles by correcting errors and the like, and its records are helpful in showing a vigilant pursuit of a claim in prosecution of a right: Sergeant’s Land Law, 174, 175. Its jurisdiction is primarily restricted to imperfect titles from the Commonwealth, but, once a patent issues, disputes over it must find settlement in the courts: Fisher v. Kaufman, 170 Pa. 444, 488.
Early in our history, when a person desired to acquire unseated lands, his proper course was to make application to the land office for that purpose, specifying with more or less particularity the lands he desired to have. The application was judicially defined as a request in writing to have certain quantities of land. This method was introduced in 1716, and was called the application system; but titles by such system ceased in 1769 and applications for warrants, or other proceedings relative to unseated land, were afterwards used. Jones on Land Office Titles, page 25, section 24, describes five different sorts of land office titles, in all of which the application is joined with warrant, survey, survey without warrant, settlement, improvements, or with the Purchase Act of 1768. The mere formal application for vacant land then conferred no right on the applicant. A precisely descriptive application, or warrant, that is, describing the land with sufficient certainty, gave an inchoate title from the date of application, provided due diligence was used in obtaining a survey and having it returned. If the application be descriptive, the mere fact of filing it and taking out a warrant for a survey, without more, gave no title. There must be an official survey and return: Huston on Land Titles, 425, 458; Chambers v. Mifflin, 1 P. & W. 74, 79; Addleman v. Masterson, 1 P.&W. 454, 458; Emery v. Spencer, 23 Pa. 271, 275. “The pretensions of a plaintiff suing for his supposed right in a court of justice should be known and certain. Considered as a part of a new system for granting vacant lands, there is the same reason for requiring an official survey on the improvement of a settler, as that upon a warrant. No ejectment would lie by Hie
Here the title is claimed by the mere filing of a paper. The application, report and order to survey does not give plaintiff a right of entry, nor the incipient title necessary to a common law action. These acts are not sufficient to germinate a title. Even if they were, the State would have the right to consider the application abandoned where the order to survey, with the report, was not procured until 1917, eight years after the application was filed. The acts of the governors did not stay the hand of the secretary of internal affairs, nor would they militate against the State’s right. It may be mentioned one governor was in office, during part of this time, against whom no complaint is made.
It is charged the officers had no authority to deny a warrant. The Act of January 27, 1806, 4 Sm. L. 268, reads, the land office shall issue the warrant, and if the law had been complied with an undoubted legal standing would be presented. But in what sense does this claim alter the nature of his title, as it otherwise existed before the court or board, — a title, imperfect or otherwise, he never possessed? To give support to plaintiff’s idea of title, the court must assume, through the failure of the board to act, that a warrant, survey, return, acceptance and appraisement had been lawfully made. How can a common pleas court, in an action of ejectment, bring to account officers who refuse to perform such
We are of opinion no right of entry vested in plaintiff through the application report and unfinished order; neither forms any contract on which the party could b,e sued by the State until a survey has been made, designating the land to be taken by metes and bounds: Blaine v. Crawford, 1 Yeates, 287, 289; Star v. Bradford, 2 P. & W. 384, 395; Chambers v. Mifflin, supra; Jones on Land Office Titles, 51; Sergeant’s Land Laws, 135, and Judge Huston on Land Titles in Pennsylvania, 424. Plaintiff had no common law right he could try out; he must, in ejectment, depend on the strength of his own title, not on the weakness of his adversary’s: Burford v. McCue, 53 Pa. 427, 432. The purpose of the Act of 1792 was to try disputed rights between the parties, arising from settlements, locations, conflicting warrants, surveys and the like.
The judgment of the court below is affirmed.