Jacobs v. Figard

The opinion of the Court was delivered by Lewis, C. J. The Act of 30 th December, 1786, defines a “settlement,” under the pre-emption laws, to be “ an actual personal resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, or by going into the military service of this country during the war.” Under this Act it has been held that continuity of actual residence and possession is the vital principle of a pre-emption right, and a part of its legal definition. Settlements must not have the smallest cast of abandonment: Watson v. Gilday, 11 Ser. & R. 340. Short intervals of non-residence, such as may frequently happen between the going out of one tenant and the coming in of another, or a temporary absence on business, so that the animus revertendi exists, will not be considered a discontinuance of the personal residence after it has been once fully completed. Nor will it be so where the settler is expelled from his residence on the land by private force, provided that he resort to proper means, within a reasonable time, to have himself restored. If he should be compelled to quit his residence on the land by any extraordinary or occasional occurrence, he must return as early as convenient, or it will be deemed an abandonment: Pfouts v. Steel, 2 Watts 412. He must not “ substitute claim for residence, and convenience for prosecution of the title:” M’Donald v. Mulholland, 5 Watts 175. By returning “ as early as convenient,” the law means as early as [48] he reasonably can. ITe has no right to keep possession without a residence, for the mere purpose of preventing others from making a settlement on the land. Such conduct, instead of being an honest Compliance with the law, is a. fraud upon it which it is the duty of the Courts to discountenance. It is a mistake to suppose that the law raises no presumption of abandonment, from the relinquishment of the possession for a period of time less than seven years. Mr. Justice Kennedy’s dictum, that “ the limitation of time ought not to exceed seven years,” is not to be understood as sanctioning an abandonment for that period of time. On the contrary, in the case of M’Donald v. Mulholland, 5 Watts 173, an absence of five years, although accompanied with a continued assertion of claim by the settler, was held as a matter of law to be an abandonment. It was there held that “ continuance of residence, with such occasional exceptions of temporary but indispensable interruption of it as circumstances may require, of which it may be the province of the Court to judge, is the groundwork of the title.” Where the question of abandonment depends upon mere lapse of time, and there is no dispute as to the length of it, it is a question of law to be decided by the Court, without regard to the intention of the party: Brentlinger v. Hutchinson, 1 Watts 51. In the case before us, there was an actual abandonment of the residence for five years and nine months. The abandonment is not excused by any circumstance which would bring the case within the equity of the statutory excuses of interruption by the enemy, or military service of the country by the settler during war. Under these circumstances, an intention to reside on the land could not be substituted for actual residence. But, in this case, there was no intention to reside on it. The tenants who occupied the place for the five years preceding the defendant’s acquisition of title from the state, had their residences notoriously elsewhere, during the whole period, without the slightest manifestation of an intention to remove to the land to reside. On the contrary, the evidence is that the tenant who had a lease for four years of that time, “ was not to move into the house or on to the land.” He “got the property for the purpose of keeping other persons out.” The few bed-clothes and articles of property kept in the house, and the idle formality of sleeping there a few nights, do not constitute an actual residence, when the proof is that the residence was on another tract, and that the object of all this show was merely “ to keep others out.” Under the evidence, the plaintiff had no title to recover; and the instructions of the Court were more favourable to him than he had a right to demand. Judgment affirmed.