Broad Top Coal & Iron Co. v. Riddlesburg Coal & Iron Co.

The opinion of the court was delivered by Agnew, J. The 1st assignment of error is answefed by the 10th section of the Intestate Act of 8th April 1833, which vests title in the widow for such estate as the intestate had, in default of known heirs or kindred competent to inherit the real estate under that act. According to the testimony of William Carpenter, William Glenn died without known heirs or kindred except his mother, who was survived by the widow. His property did not then escheat, but went to the widow, who joined in the deed of September 7th 1860. The 2d assignment of error is also without foundation. There is no evidence that John Hamilton had an actual possession within the lines of the Isaac Kerr survey, while his own warrant was not taken out and surveyed until the year 1847. His actual possession of 1820 was confined to a different part of his claim. He had no title or possession, therefore, before the date of the patent to John R. Coates for the Isaac Kerr tract, which was granted in 1831, and on this state of facts the patent was competent evidence of the title from the warrantee: Downing v. Gallagher, 2 S. & R. 455; Read v. Thompson, 5 Barr 328-9; Balliot v. Bauman, 5 W. & S. 150; Steiner v. Coxe, 4 Barr 28-29. The question of costs did not belong to the jury, but must be . determined by the court after the verdict was passed. The 3d assignment of error is therefore without foundation. There was no evid.ence to justify the call for the instruction requested in the defendants’ 2d point. Without an actual possession within the lines of the Isaac Kerr survey, the marking of lines could give no title by the Statute of Limitations. A presumptive possession does not exist in favor of a junior against a senior title. The contrary is the presumption of law which gives the possession to the owner of the title until he is disseised by an actual ouster. This 'has been settled by the two cases of Hole v. Rittenhouse, 1 Casey 491, and 1 Wright 116; and O’Hara v. Richardson, 10 Wright 390. The case of Ament’s Ex’rs. v. Wolf, 9 Casey 331, on its facts, is in accord with these cases. There are some expressions in the opinion in defining what is actual possession by user of the woodland, which might seem to convert acts of mere trespass into an actual possession; but which when applied to the facts in the mind of the judge do not justify this conclu [443] sion. In that case the junior warrant holder .cleared a field of about five acres within the interference, and had had possession of that and an uninterrupted-use of the rest of the interference, as woodland adjacent tovfarms is commonly enjoyed, for twenty-one years before suit brought. The radical error of the 3d and 4th points of the defendant is, that John Hamilton had no title whatever to the land within the Isaac Kerr warrant and survey, and therefore had nothing to which the patent to Coates could attach for his benefit. The patentee is a trustee only when there is a better owner of the land from the Commonwealth. Hamilton’s improvement was cut off from the Isaac Kerr tract by the lines of the warrants and surveys of Benjamin Penn and John Stone, which cornered together. A settler or improver can obtain no title to appropriated land, or take up disconnected vacancies severed by intervening appropriated land, or hold adjoining vacant land by settlement on appropriated land: Overton v. Gibson, 2 Watts 384; Adams v. Jackson, 4 W. & S. 55; Smith v. Beck, 1 Casey 106; Lineweaver v. Crawford, 2 Id. 417. This grows out of the definition of a settlement of which residence is the chief and essential element. Cultivation also is a necessary ingredient: Act 30th December 1786, § 2; 2 Smith’s Laws 395; Act 22d September 1794, 3 Smith’s Laws 393; Gardinier v. Marcy, 5 Watts 337; Goodman v. Losey, 3 W. & S. 530. Having neither a residence of his own nor that of a tenant on the Isaac Kerr survey, there was nothing by which Hamilton could acquire title for himself, by his settlement on the land cut off by the Penn and Stone tracts, or by which he could claim the benefit of the Coates patent. There seems to be nothing on the record that will sustain the 7th assignment of error. By the bill of exceptions it appears that the first verdict was not recorded when the judge arrested the proceeding and sent the jury back to reconsider their verdict as to the Hamilton tract, on the ground that the verdict they were about to render was contrary to the charge of the court. In the absence of any improper influence to compel the giving of a verdict in a certain way, it is not error to send a jury back to reconsider a verdict about to be rendered against the charge of-the court. Indeed it is more judicious to call the attention of the jury to the error they are about to commit in finding contrary to express instruction, than to receive a verdict which must be set aside, and cause the parties the delay and expense of another trial. Finding no error in the record; the judgment is ailirmed.