Lessee of Miles v. Potter

Tilghman C. J. The warrant to general Potter calls “ 200 acres of land in the great plains, to include the forks “ of the road.” It may be applied not improperly to the lands in dispute, though in some respects it is loose; because not only the plains but a considerable quantity of wood land, and also Penn's creek are included in the present survey; whereas the “ great plains,” strictly speaking, take in neither woodland nor creek. At what time general Potter was informed of the survey made by William Maclay, does not appear. Perhaps he did not know of it immediately; and considering the circumstances of the country during the revolutionary war, which commenced in 1775, and ended in 1783, and in which the general took an early and active part, it may be thought not extraordinary that we hear of no objection to the survey till August 1783. But having made his objection then, he ought to have followed it up. He should have ap [70] plied to the board of property sooner; for it was not in the power of William Maclay to make any alteration in a survey returned by him, without a new authority from the land office. It was too long to suffer the matter to rest from August 1783 to September 1787. In the mean time, viz. 19th July 1785, the plaintiff appropriated the land; and although his warrant was shifted, yet his right attached from the time of tlie’return of his survey, which for the reason before assigned, must in all probability have been prior to general Potter’s application to the board of property. Some stress has been laid on the circumstance of general Potter’s having sold 100 acres of land, part of which at least is included in his survey, to George Woods about the year 1776, who made an improvement on it, and still holds it. To this it has been answered that the plaintiff claims no part of Woods’ improvement; and that Potter Dever claimed under an improvement, but under his warrant and survey. Woods is no party to this suit, nor is there evidence sufficient to invalidate the plaintiff’s claim against the defendants by reason of any title in Woods. On the whole of this case, we think justice requires that the matter should be submitted to the consideration of another jury; especially as the plaintiff will be barred by the act of limitations, if judgment is entered on the verdict which has been given. New trial awarded.