Wyncoop v. Heath

The opinion of the court was delivered by Kennedy, J. The first error has reference to that part of the charge of the court in which they tell the jury that the first question for them to decide is, “whether John Wyncoop entered and continued the occupation of the land with the intention to draw the means of maintaining a family from the proceeds of the soil. If so he is to be considered an actual settler; but if his object was merely to build a saw-mill and cut the timber into lumber, and make gain from it in that way, he is not an actual settler, and can .have no legal claim to the land in controversy.” The act of assembly of December 30, 1786, declares “that by a settlement shall be understood 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 thé enemy, or by going into the military service of this country during the war.” Here we see that the settler must reside in person, that is, either by himself or his tenants, on the land, with the intention of making it his place of abode; in other words, his home, and the means of supporting his family. And in order to meet the requisition of the act, such personal residence on the land as a home, and making it the means of supporting a family, must be continuous and without interruption; and in no case will this [430] be dispensed with, excepting where the party is prevented from doing so by the enemy or by going into the military service of the country. Seeing then, the residence upon the land must not only be permanent and continuous, but likewise that the use of it for the purpose of making it the means of supporting a family, must be so, it is therefore proper to inquire and see how this latter object or end is to be effected. The act limits the pre-emption right of the settler to 400 acres, a quantity then thought sufficient in all cases, and probably not too much in some, to furnish the requisite support for a family by using it for the purposes of husbandry. At that day no man ever thought of making a permanent settlement, and perhaps but seldom, if ever, at the present, on land not considered susceptible of tillage. This was the only use that would then, according to the custom of the country, have been made of such a quantity of land, so as to have procured from it a perpetual and adequate supply for the support and maintenance of a family. It is perfectly obvious that the timber of 400 acres, however good it might be, by being cut and sawed into lumber, would all be exhausted in the course of a few years at most; and the means of supporting a family thereby would immediately cease, and most likely be for ever terminated, instead of being “continued from time to time” according to the language of the act. The great object of the state in granting pre-emption rights was, to have her lands improved by tillage as well as settled, so that the value of them might be increased, and at all events not deteriorated. But it is manifest, if such right were to be extended to every person entering upon lands of the commonwealth and residing there with his family, for the mere purpose of cutting and converting the timber growing thereon into lumber, that her object, in many instances, would be entirely frustrated, and the lands rendered worthless and altogether unsaleable. We therefore think that the plaintiff has no sufficient ground to complain of the charge of the court below on this point. As to the second error, there is clearly nothing in it; for the court, after having defined and explained to the jury what in law constituted a settlement, left it to them to determine from the evidence whether the plaintiff had done all that was requisite to complete it. This was submitting nothing to the jury but the mere question of fact, whether, what the court defined to be a settlement, had been made or not upon the land by the plaintiff. The third error is alleged to be founded upon the 15th section of the act of April 8, 1785, which directs and enjoins the surveyor-general and his deputies to locate and survey the amount of land contained in each warrant, in one entire tract, “in such manner and form, as that such tract shall not contain, in front on any river more than one half of the length or depth of such tract, and to conform the lines of every survey in such manner as to form the figure or plot thereof, as nearly as circumstances will admit, to an [431] oblong of three times the breadth thereof.” The direction of the act, in this particular, has never been regarded, in practice, as extending to other than large streams of water, and such as have ever been uniformly called “rivers;” but the stream in question was looked on and called a creek uniformly, to wit, “Toby’s creek,” until 1825, or near about that time, when it had the name of “Clarion river” first given to it by some one, and, since that, has received this name in acts and legislation by the state. But if a surveyor, in making a survey should happen to disregard this direction of the act, the act in terms does not declare that the survey shall be void on that account, and may therefore be considered as only directory. Judgment affirmed.