Jackson ex dem. Hornbeck v. Seaman , 3 Johns. 495 ( 1808 )

Thompson, J.

delivered the opinion of the court. The lessors of the plaintiff claim title to the premises in question, under a patent to them, bearing date the 3d September, 1805, for 200 acres of land, in lot no. 64. in the town cf Aurelius, in the military tract. It was admitted on the trial, that the premises were a part of one of the four lots reserved by the 6th section of the act of the legislature of this state, entitled “ An act to appropriate the lands set apart to the use of the troops of the line of this state, lately serving in the army of the United States, and for other purposes therein mentioned,” passed the 8th February, 1789. (Greenleaf’s ed. v. 1.p. 284.) These lots were reserved for the purpose of making up certain deficiencies designated in the act. The objection taken on the part of the defendant, to the operation of the patent, is, that the commissioners of the land-office were not authorised by law to appropriate this land, in the manner they have done by this grant. The objection does not appear to us to be well taken. By the act of the 24th of March, 1795, (Greenleaf’s ed. v. 3. p. 200.) provision is made for restitution to persons to whom lands had been granted, which fell within the tract previously ceded by this state to the commonwealth of Massachusetts. The lessors of the plaintiff are persons of this description ; and other lands in lieu thereof,were to be granted to them out of any unappropriated lands within this state. It is said, however, that the land contained in this patent was appropriated to the obj ccts mentioned in the act of February, 1789. By this act no time is limited within which the deficiencies should be ascertained. But by an act of the 11th April, 1799, (Greenleaf’s ed. v. 3. p. 351.) no compensation for any deficiency was to be made, unless application for the same made on or before the 1st January, 1798. All these reserved lots, not appropriated to make up such deficien-cies, previous to that time, would, of course, become unappropriated lands. And by an act of the 11th April, 1804, (27th sess. ch. 3.) these reserved lots are expressly declared to be unappropriated lands.

Admitting the plaintiff’s right to the land, the defendant claims compensation for the improvements, under the 8th section of the act of the 11th April, 1803. (26th sess. ch. 106.) If the commissioners of the land-office had a right to issue a patent to the lessors of the plaintiff, in the manner they have done, this is not a case coming within the act under which compensation for improvements is claimed. This provision applied only to cases where the sales were made under that act, and the improvements were to be ascertained and paid for, before the letters patent were to be issued. In the present case the patent was not issued under the authority of the act of the 6th April, 1803, and, of course, none of the provisions relative to a compensation for improvements, are applicable.

The Court are, therefore, of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.