Lessee of Bayard v. M'Innes
1 Add. 292
| Pennsylvania Court of Common P... | 1796
President.

It may, on the whole be best, to receive the testimony: but we will reserve the point; that, if there should be a verdict for the defendant, there may be a motion for a new trial.

Evidence was then given, that M'Innes, in 1768, asked captain Edmonstone, the commanding officer at Fort-Pitt, for a permission for a piece of land. Edmonstone said he could give no permission to settle but on the road, and desired him to go and find a piece of land on the road, and come to him, and he would give him a permission. Immediately after this, M'Innes sent a man to this place, who grubbed, a week, and made four or five hundred rails, in the bottom between the two fordings of the creek, where he has his house and clearing now. And in March, 1769, he built a cabbin there, twenty-five feet square, and covered it. M.'Kay knew of M'Innes working there, and gave directions, that he should not be permitted to clear over his marked line, which he pointed out. M'Innes then lived at some distance, and settled another plantation, which he afterwards sold. In 1770, or 1771, there was corn raised at M'Innes’s improvement on Turtle creek; but he did not live there till 1782, or 1783.

The plaintiff then produced evidence, that the present deputy surveyor had traced the lines of the patent, and found corresponding line and corner marks on the trees; and that the survey of M'Innes interfered with those lines. Evidence was then given, that M'Kay had taken out the location in the name of Samuel Thomson, and had paid *296for the survey; that the conveyance from Thomson was not to be found; that M'Kay had forbidden M'Innes to work on this land; that M'Innes had agreed to forbear, if M'Kay would give him 4l. to pay for the surveying of another tract; that M'Kay and M'Innes agreed to submit it to three men to value M'Innes’s improvement; and that they valued it, (being, as appeared from a writing produced by the plaintiff, dated 15 November, 1770, signed by them, a cabbin, without roof or door, with a few rails deadened) at 45s.

2 Str. 1080. 3 Bla. Comm. 358, 399. 2 St. L. 268. 3 St.L. 782. Note. In this case, a special jury had been ordered; (at a term in which the cause was not tried) and Mr. Brackenridge moved that the costs be paid by the plaintiff, on whose motion it was ordered. President. The costs ought to be paid by the party putting off, or losing the cause. The bill of fees directs this.

President. The title is clearly in the plaintiff; unless it has been diverted by some act of M'Kay’s.—You will enquire, 1. Whether there was any agreed line; and 2. Whether, if there was, M'Innes has relinquished his claim under it, by a subsequent transaction.

Verdict for the plaintiff.