Cosby v. Lessee of Brown

Tilghman C. J. after stating the case, delivered the opinion of the court. [127] There is no doubt but the plaintiff commenced a settlement in 1797, and returned to it in the spring of 1798 with' a view of completing it. His right was prior to the defendant’s; and if he had commenced an action soon after being prevented by the defendant, he must have recovered against him. But although he might have recovered if he had brought suit in a reasonable time, it does not follow that he may recover after a lapse of seven years. The law with respect to actual settlers was laid down by this court explicitly in the case of Porter and Wright, plaintiffs in error, against the Lessee of Small, defendant in error. If the settlement once commenced, is not continued without interruption, it lies upon the settler to account for it by some reasonable cause. A liberal allowance is made for a man who has evinced a dona fide intention to settle. Danger from an enemy, the death or sickness of the party or his family, the difficulty of procuring provisions, and a variety of other circumstances, are to be taken into consideration. But it must always be remembered, that the title is imperfect, till completed by improvement and residence of five years, and that though fairly and legally begun, it may at any time be relinquished. It is no uncommon thing for differences and even force to take place between settlers on the same tract; but although the prior settler may be in the first instance ill used, and driven off by force, he may not always chuse to pursue his settlement. As long as he is prevented by the apprehension of violence, he stands excused from prosecuting his improvement. And even if he brings no suit, it is possible that he may fairly account for it. But I cannot assent to the broad proposition contended for by the counsel for the plaintiff, that, a man who is once prevented by violence, may retire from the land, and recover in an ejectment at any time within twenty one years. Such unreasonable delay may take place as would justify the younger settler, who had made use of force, in thinking that his adversary had relinquished all idea of settlement; and in that case, the law will not suffer the labours and expenses of years to be swept away. The title of a settler under our act of assembly is of a special nature. Until completed by improvement and residence, it is not to be compared to the case of a person possessed of a perfect legal estate, whose right of entry [128] is not barred by less than twenty-one years of adverse p6s- ' session. We have been accustomed to leave it to the jury to decide, under the circumstances of each particular case, whether the settler has followed up the commencement of his settlement with reasonable diligence. In the case before us, the court below took it for granted that the plaintiff was at all events entitled to recover, if he was hindered by the defendant from prosecuting his settlement, in the year 1798. In this I think they erred; for it should have been left to the jury to decide, whether under the facts given in evidence, the plaintiff might not fairly be presumed to have relinquished his settlement. Another point has been made respecting the plaintiff’s survey. The defendant contends that no legal survey was made, and that without it, the plaintiff cannot recover. It has been determined in the Circuit Court that a settler cannot support an ejectment without a survey. But the facts respecting this survey are not so fully stated on the record as I could wish, to form a decided opinion. I confess that I shall always feel strongly disposed to support the case of a settler who has requested the officer appointed by the government to make his survey, and given him the necessary instructions, especially where the officer enters a survey in his book as having been actually made, and it is not pretended that a third person has been injured by making improvements which he would not have made, if he had known of an adverse claim. But upon this point I give no opinion. Upon the whole my opinion is, that there is error in the charge of the Court of Common Pleas, and that therefore the judgment of that court should be reversed, a writ of restitution issue, and a venire de novo be awarded. Judgment reversed.