Gordon v. Lessee of Moore

Tilghman C. J. This case comes before us on a bill of' exceptions, and turns on the admissibility of the parol evidence of a division line niade between Gordon the defendant below and James Moore father of the plaintiff, which was offered on the part of the defendant and rejected by the court. In order to determine this, we must take a view of the preceding evidence, which was to the following effect. [The Chief Justice here stated the facts.} [137] We must take into consideration the peculiar nature o£ this title acquired by improvement and settlement. A settlement having been commenced, the settler gained a right of pre-emption of 300 acres of land, provided there was so much vacant and unappropriated adjoining his improvement. But as John Moore and Gordon had an equal right' to 300 acres, it might become necessary that each should abate something of that quantity. It is understood to be the law,, that before a settler ascertains his boundaries by warrant and survey, he may, so far as concerns his neighbours, ascertain his limits by lines marked on the ground. Before this is done, it is impossible to say what land is intended to be included in the settlement. For it may be laid off in various directions, and less than 300 acres may be taken at the pleasure of the settler. The lines being marked, notice is.given to the neighbourhood; and unless some particular objection should occur, it is reásonable that those lines should be adhered to, when the title comes to be completed by warrant, survey and patent. Now granting that James Moore, the father of John, had himself no right of pre-emption, and that he could do no act to fix the boundaries of his son, without authority derived from him, it was material for Gordon to prove, that previous to John Moore's taking out a warrant, he Gordon had declared his intention to extend his claim, as far as the line agreed on with James Moore; and as John Moore was generally absent and employed in wood-cutting, and his father was always on the land, it was very proper that the father should receive notice of the extent of Gordon's claim., Gordon's improvement was to the eastward of Moore's. He might for aught that appears, have taken up what land he wanted by going to the eastward of his improvement, without touching the land now in dispute. It was his duty therefore, if he meant to go to the westward, which would bring him in contact with John Moore, to give eafly notice of his intention, in order that Moore might goverruumself accordingly. In this point of view, I am clearly of opinion, that the evidence offered by Gordon was competent, and ought to have been received. At the same time, the Court should have informed the jury, that the act of James Moore had no effect on his son’s title, unless autho [138] rised by him. My opinion is, that the judgment should be reversed, and a venire facias de novo be awarded. Yeates J. Whether the consentible line established between James Moore and Robert Gordon, which was offered to be proved on the trial, was binding on fohn Moore under the circumstances of the case, would depend on the fact of ownership of the improvement under which the claim was set up by the plaintiff below. But that the same was admissable evidence to designate the claim of the plaintiff in error under his improvement, previous to the warrant taken out by the adverse party, there can be no doubt whatever. The plaintiff below might have demanded of defendant’s counsel for what purpose this evidence was offered. But not having done so, if the fact attempted to be established was properly receivable for any purpose, it is manifest error if the evidence was rejected. I am of opinion, that the judgment of the Court of Common Pleas be reversed, and a' venire facias de ■ novo be awarded. Brackenridge J. was sick during the argument and gave no opinion. Judgment reversed and venire de novo.