Phillips v. Wilson , 1 Wash. C. C. 470 ( 1806 )

WASHINGTON, Circuit Justice.

The first objection to the plaintiff’s title, is, that the warrant issued before the payment of the purchase money. Without giving any opinion how the law would be, if such were the case, it is sufficient to state, that though the warrant bears date when the application was filed, agreeable to the uniform custom of the land office, in fact it issued on the day when the purchase money was paid; and the small sum paid in 1S0O, was only the interest which accrued between the date of the application and the issuing of the warrant; and, consequently, the case does not come within the provisions of-either of the sections of the act of 1792, which were relied upon.

2d. The uncertainty, the mislocation, and the improper appropriation of the tract to the warrant, are objected. All of these may be considered at once, for all have been determined in the ease of Huideköper v. Burrus [Case No. 6,848]. If the warrant be uncertain; or, if it be certain, and is laid in another place, and before the suivey is made, no third person has acquired a title to the land on which the warrant is laid; every objection is done away. The survey gives notice to all subsequent purchasers, and it is sucbonly who can complain. As to the state, it is perfectly immaterial where the warrant is surveyed; but, such survey could not oust out a person, who, in the meantime, had acquired an incipient title to the land surveyed, either by warrant or settlement. As to the not surveying each separate warrant on the land to which it is to attach, at the time of the survey, if the surveyor has warrants to the amount of the land surveyed, and he comprehends the whole in one inclusive survey, marking the boundaries of the different surveys; it is nothing to third persons, how the owner of the several warrants may appropriate, on the connected map, each warrant to its respective tract, before the map is returned to the surveyor general. Whether these objections are to be considered as cured from the day of the survey, which, in this case, was in March, 1795. or on the day when the connected plat was returned, two months after, it is not, in this case, material to decide; because, if an -actual settlement was not made, on or before the first period, it is hot. pretended that it was made between the first and the latter period. But we do not moan to intimate an opinion, that the latter is the true time.

3d. The only observation necessary to make upon this objection is, that the law of April, 1794, does not apply to this case. This law applies to cases where the purchase money was not paid before the 15th of June. 1794; and the indescriptive warrants, whicli it is said shall not, by virtue of this act. affect the title of those who have made improvements, are such warrants as are permitted to lie surveyed under this act. The warrant in question is not of this description, because it was paid for on the 12th of June, 1794. The great question, then, depends upon the defendant’s title; and it is to be considered, whether the defendant, or the person under whom he claims, made an actual settlement within the meaning of the act of April, 1792, or at any time before March or May, 1795. What constitutes such a settlement, is a point of law, and was fully laid down in the case of Balfour's Lessee v. Mead [supra], which has been read to the jury. Whether such a settlement was made, is a matter of fact for the jury to decide. To disprove such a settlement, the plaintiff relies upon the state of the country, which, from 1793 to 1790, forbade any person to make such a settlement, and the general evidence given, that no such settlements were made within that time. That Guy was a resident with his family, during that period, on the south of the Ohio, and that lie only ventured out at times to the cabin he had raised, for temporary purposes to make sugar; or under a false, but common opinion, that improvements, without an intention to settle, would give a right

The plaintiff’s counsel have also insisted, that, even if an actual settlement was made, it was not on this land; and that, therefore, the defendant cannot now run into this land, which was surveyed in March, 1795. There is some' contradiction in the evidence, as to this fact; but. if proved, as contended for by the plaintiff, it would become an important question, whether the settler can extend the limits of his 400 acre settlement right, into an adjoining survey, if he has failed to lay off his lands before such survey is made. Without deciding the point, it may be sufficient to observe, by the way, that, if he may do so, he has it in his power to make his settlement protect not merely 400 acres, but three or four times as much, from appropriation; by extending his limits north, south, west, or east, as his fancy or caprice may lead him; and thus eitherpreventothers from surveying in his neighbourhood, or after-wards disturb their possessions. This would seem a very unreasonable thing; but this case seems to keep clear of this objection, as he applied to the surveyor to mark the bounds of his settlement right, at the time he was surveying these warrants. I know not what more he could do; and, I am inclined to think, it would be unreasonable to make him suffer, because the surveyor refused to comply with the request, provided he was such a settler, as was entitled to call upon the surveyor to perform this duty; for, if he was.not, then there was an end of the controversy: and this brings us to the important part of the cause. Was he such a settler, in March. 1795? If, upon the evidence, you are of opinion he was not, then your verdict must be for the plaintiff; if he was, then it must be for the defendant.

The jury found for the plaintiff.