Lessee of Bond v. Fitzrandolph

By the court. The two clauses of the act refer to different objects. Though the words of the 11th section are general, they have been held not to extend to lands claimed under rights or contracts previous to the passing of that law. The law does not require in terminis, that a caveat shall be filed to try a title to lands. There are no words restrictive of the jurisdiction of the ordinary courts of justice in the first instance ; and we will not by construction, increase the powers of the Board of Property. The parol evidence therefore must be received ; but what operation the bare improvement will have, where the plaintiff must recover on showing a title, is another question. After the testimony was closed, and the cause had been spoken to by the counsel, the court delivered the following charge in substance : This is a case of the first impression, under the act of 3d April, 1792. That law has introduced a new species of title, but whether it will effectuate the intentions of the legislature, time only can determine ; in the mean'while it behoves us to move with caution, and to reflect fully before we form an [229] opinion. No warrant exists on either side ; both parties claim as actual settlers and improvers under the 8th and 9 th sections of the act. The plaintiff, who must recover by his own strength, must bring himself clearly within the law. “ On his conforming to the provisions of the act, ” depends the validity of his right. An application to the deputy surveyor of the district, and payment of the legal fees, form a part of that conformity. The plaintiff has given no survey in evidence, nor can we collect from presumption, that he has attempted to make one. His pretensions therefore are not designated or defined. His house and part of his original inclosure are excluded by the defendant’s survey. He cannot claim under agreed lines made by the predecessors of the defendant and others, while he sets up a title adverse to the former, How then shall his improvement be extended, or in what direction shall it go ? Confining ourselves to the case now before us, we are of opinion, that the plaintiff having shown no survey, nor even an attempt to make one, his claim is not recognized by the law, so as to entitle him to recover. If the deputy surveyor had refused to do him justice, he might have complained thereof to the surveyor general or the Board of property, and he would then have evinced an endeavor on his part to conform to the law. But no pretext of that kind exists in the present instance. Mr. Brackenridge, pro quer. Messrs. Ross and Woods, pro def. Verdict for the defendant.