Lessee v. Lowry

Tilghman, C. J. delivered the opinion of the court. This cause comes before the Court upon an appeal from the Circuit Court of Allegheny county. The ejectment was brought to September 1797, and tried November 1802, when a verdict was taken for the plaintiff, by agreement, subject to the opinion of the Court upon the points to be reserved. These points are specified in the record, and are now the subject of our consideration. The counsel for the defendant has argued the cause on very extensive grounds, and raised many points not necessary to be determined in deciding the questions before us. The weight of business resting upon this court, will mak ■ us cautious how we express our opinions on matters foreign from the [171] case before us. I shall therefore confine myself to the reserved points stated on the record, without intimating any opinion on any other question. The first and second points may be considered under one view. They, as well as the third point, arise out of the act of 3d April 1792, and principally out of the 9th section of that act. Although this section is expressed with such obscurity as to have occasioned great diversity of opinion among men of the first abilities, yet there are some points concerning which there can be little doubt. One of these points is, that if the settlement required by law is prevented by force of arms of the enemies of the United States, the interest of the grantee does not revert to the commonwealth, although the settlement is not made within two years from the date of the warrant. Now in the case before us, the warrant bears date the 13th April 1792, and it is notorious, and not denied by the defendant, that for more than two years from that time there was open war with the Indians, which rendered it dangerous to attempt a settlement of the land in dispute. It may be safely affirmed, from the public acts of the commonwealth in granting money and raising troops for the protection of the country, that this state of danger- existed until the pacification by General Waynes treaty with the Indians. If the danger arising from this war excused the warrantee from making a settlement, so did it likewise excuse the deputy sur > veyor from surveying the land. The counsel for the defendant contends, that inasmuch as the warrant does not describe the land except as “ adjoining a tract granted to Walter Stewart,” which had not been surveyed, the warrantee could not know where it lay until it was surveyed, and of consequence he could not be prevented from settling what he had no right to enter on. But this argument has more of refinement than of sqlidity. When the warrantee paid his money and took out his warrant, his title commenced; he obtained a right to reduce the land to a certainty by survey, and he shall not be deprived of that right by the event of war. There is nothing in the act which authorizes such a position. On the contrary, the proviso in the 9th section which excuses the settlement, does virtually excuse the survey. The third point for our decision supposes that the warrantee was prevented by the enemy from making a settlement for two years from the date of the warrant; but the defendant contends [172] that a settlement was not made within a reasonable time after l’ne prevention ceased. It was decided by my three brethren at the special Court at Sunbury, (a) when I had not the honour cf a Eeat CI) this bench, that a reasonable time for such sett^einent should be allowed; and to that opinion I subscribe. The question then is, what is that reasonable time? The law has not fixed it. .But as two years are allowed for building, clearing, and fencing, in case the country had been in a state of peace, it seems most consonant to the spirit of the law that where war existed from the date of the warrant for two succeeding years, not less than two years should be allowed from the pacification by the treaty by which the war was concluded. I understand this to have been the opinion of the Judges of this court, and I see nothing which should induce us to depart from it. The defendant then, having entered during the time that the lessor of the plaintiff had a right to hold the land for the purpose of making a settlement, was a wrong doer, and subject to be removed either by an entry or by ejectment. It follows that the plaintiff was entitled to judgment in the Circuit Court, and that judgment must now be affirmed. Judgment affirmed. Footnotes [(a)] 4 Doll. 237.