Emery v. Spencer

The opinion of the Court was delivered by Woodward, J. When it is said that a precisely descriptive warrant gives title from its date, and a vague one from the time of survey, the qualification is sometimes added and always to be understood, if it he followed up with reasonable diligence. Whether descriptive or vague, the warrant imposes on the holder the duty of having it surveyed and returned into the surveyor-general’s office in a reasonable time, and his supineness is punished by postponing him to a more diligent, though subsequent, claimant. How long he may lie by and delay his survey, or, having made it, delay procuring return of it, has not been distinctly settled, unless Strauch v. Shoemaker, 1 W. & Ser. 173, be regarded as fixing the rule; but since the case of Star v. Bradford, 2 Penna. R. 397, a delay for seven years has been accounted ground of a legal presumption of abandonment. Ordinarily, abandonment involves a question of intention, and is for the jury on all the circumstances ; but where it depends on lapse of time, and there are no repelling circumstances in proof, it becomes, after seven years, a conclusion of law, to be declared by the Court. In most of the cases in which these principles have been discussed and settled, it has not been shown that the purchase-money and office fees were paid to the Commonwealth on taking the warrant, and it is supposed that that circumstance when shown varies the general rule as to diligence. It is doitbtless much more difficult to presume a man’s intention to abandon land for which he has taken a warrant and paid, than land for which he has merely taken a warrant, and hence payment of purchase-money is a powerfully repelling fact when the intention to abandon is to be deduced from circumstances; but this fact loses much of its force, when abandonment results as a presumption of law, from lapse of time. Payment of purchase-money does not excuse a man from making survey and return of his warrant. If the cases are examined, it will be found that the rule which holds warrantees to reasonable diligence is founded not only in the interest the Commonwealth has in the purchase-money, but mainly in the public policy which demands clear ascertainment and record notice of what land has been appropriated, and by what metes and bounds it is claimed; and, therefore, it is as applicable to the warrantee who has paid for his land as to him who has not. The case of Roland v. Long, 1 Harris 464, is relied on for the supposed effect of [276] payment of purchase-money; but, though well decided on its circumstances, it does not justify the distinction suggested here. Long took a descriptive warrant in 1815 — paid purchase-money and office fees — proved a survey duly made and returned in 1815 —took actual possession of the land, and cleared and cultivated two acres or more of it. The only defect in his title seems to have been that the return of survey could not be found in the surveyor-general’s office, and when, in 1849, Roland took a warrant, and Long discovered that his survey was lost, he caused another survey to be made, which was returned the same day as Roland’s. On these facts, with the additional circumstance that Roland had taken his warrant with notice of Long’s rights, the Court held that the latter was not postponed; but, in ruling that ease, Judge Rogers reasserted the general principles in these words: “An applicant is not bound to look beyond the land office; and, although a warrant may be issued, and money paid, yet if there be no return of survey in the office, the title under a junior warrant will be good. If he neglects to see to the return of survey for a longer period than seven years, it is at his own peril. He must be content to lose his land if another applies for it, pays his money, and has his title perfected. The state is interested that all the land surveyed should be paid for; and the public has a right to know what land has been appropriated, that individuals may not lose their money or labor in acquiring title to it. A knowledge of a warrant being issued is nothing, for the applicant has a right to act on the assurance arising from a want of a return of survey, that the original warrantee, for some cause, has abandoned his title.” So in Steinmetz v. Logan, 5 Watts 524, Judge Kennedy says, “ the question presented here is whether the owner of a warrant for land specially' described therein, upon which the purchase-money has been paid to the state, and a survey made thereon, without being returned into the surveyor-general’s office, or anything more whatever being done, either in regard to it or the land, for the space of nineteen years and upwards, is still to be considered as having a good subsisting right or title to the land included within the survey; or whether he is not to be considered as having abandoned his survey and claim to the land embraced within itand then the learned judge goes on to take a distinction between abandonment of the land mentioned in a descriptive warrant, and abandonment of the warrant itself, and rules the question propounded against the holder of the descriptive warrant who had paid his purchase-money and made his survey, but had failed to return it. Even where a deputy surveyor fraudulently omits from his return part of the land actually surveyed, it is the duty of the owner to apply to the surveyor-general or the board of property for redress within a reasonable time, or he will be postponed to an intervening right: Adams v. Jackson, 4 W. & Ser. 56. [277] Authorities might he multiplied, hut these are sufficient to show-how imperative is the rule of vigilance which the law enjoins on warrantees, and that it is not relaxed on account of the prepayment of purchase-money. Though the warrant paid for he strictly descriptive, the owner if he find more vacant land may include it, or he may alter his lines, or abandon the land altogether and locate the warrant elsewhere. It is not till he makes return of his survey that the state can know whether she is paid for all the land appropriated, nor what its location and boundaries. In the case before us, there was not only no return of survey but no survey within seven years from the date of the warrant. The warrant issued to Josiah Emery on the 26th November, 1836, and was entered in the location book of the deputy surveyor of Tioga county, but was never surveyed until the 5th August, 1850. Spencer’s settlement commenced in the spring of 1849, and according to the principles discussed, he acquired the best right to the land if he followed up his inceptive title with that degree of diligence which the] law requires of settlers. Of that hereafter. That the payment of purchase-money and office fees did not excuse the want of a survey and return is sufficiently apparent from what has been said; and if not, the doctrines advanced and illustrated in Chambers v. Mifflin, 1 Penna. R. 74, Addleman v. Masterson, Ibid. 454, Brentlinger v. Hutchinson, 1 Watts 46, Zerbe v. Schall, 4 Watts 138, Bunting v. Young, 5 W. & Ser. 188, Wilhelm v. Shoop, 6 Barr 21, as well as in the cases above cited, justified the Court in ruling as a conclusion of law that Emery after, so long delay, nearly fourteen years, had abandoned, if not his warrant, the land therein described, and left it open to appropriation by the next comer. That the payment of taxes and the sale of the land as unseated do not help the title of the warrantee is shown by Strauch v. Shoemaker, where it is said that possession of the land and improvements made, constitute the only exception to the general principle that abandonment will be presumed after seven years’ delay to return a survey. In Roland v. 'Long there was actual possession —in this case there was none. The tax sale was void for want of jurisdiction, for, until appropriation of the land, the commissioners had no right to assess it. Nor does the fact that Spencer had notice of Emery’s warrant weigh a feather in the case. Notice that a man has held a warrant more than thirteen* years without a survey, if anything, is notice that he has abandoned the land described in it, and is an invitation to the world to come and take it. These observations dispose of all the assignments of error which relate to the plaintiff’s title. The evidence in the bill of exception sealed for the plaintiff related to the question of notice, and as the [278] fact, fully proved by other evidence, was valueless to the plaintiff, he was not injured by rejection of the evidence offered. Now as to the defendant’s title. That is founded in a preemption right which counsel say cannot be set up since the Act of 10th March, 1817. The 2d section of the Act of 22d April, 1794, had closed the land office as to the then new purchase against all except actual settlers and improvers; and the Act of 1817, without saying a word about actual settlers, reopened it to purchasers in general. Because a class of purchasers were admitted in 1817 who before had been excluded, and were carefully required to prove whether the land applied for had been improved or not, it is argued that pre-emption, which is nothing else than the right of the actual settler to become the purchaser, was cut up — an argument which, when deduced from the Act of 1814 against settlers south of the Ohio, Justice Burnside characterized in Stockwell v. Robinson, 1 Barr 481, as strange. It is no less strange as applied here. The actual settler has always been a favorite with the legislature and the Courts in Pennsylvania, and justly, for it is he who introduces civilization into the wilderness places; and an enabling statute which permits others to buy what he has not appropriated, would be grossly misapplied if construed to exclude his rights. As to the acts and intentions necessary to constitute a settlement, and the diligence with which they are to be pursued, the instructions given were according to t.he authorities. Where they are found to exist, as, under proper instructions from the Court, the jury found in this case, the title of the settler relates back to the time of entry, and the first stroke of the axe. In this instance that was more than a year previous to the plaintiff’s survey of his warrant. The direction complained of in the 7th assignment of error was justified by the ruling of this Court in several cases: see Adams v. Jackson, 4 W. & Ser. 55; Reed v. Dickey, 2 Watts 459; Black v. Moore, 1 Barr 348; Jones v. Broomfield, 2 Barr 55. On the whole, we see no error in the record, and the judgment is accordingly affirmed.