USA > Pennsylvania > A history of the region of Pennsylvania north of the Ohio and west of the Allegheny river, of the Indian purchases, and of the running of the southern, northern, and western state boudaries. Also, an account of the division of the territory for public purposes, and of the lands, laws, titles, settlements, controversies, and litigation within this region > Part 9
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In Bedford v. Shilling? it was decided that this Act did not extend to suits commenced by war- rantees against settlers before its passage. The advantage the Act of 1814 intended to confer upon the settler received a severe shock in the case of Ross v. Barker,3 which overthrew all its supposed protection; that case deciding that in certain aspects the Act would be unconstitutional, and in certain others it would be useless. Under the decision in Ross v. Barker its operation, if any it could have, was limited to a narrow compass.
The controversy under the 9th section of the Act of 3d April, 1792, was, however, brought substantially to an end by the Act of 3d April, 1833,4 which dispensed with the settlement, and
1 7 Smith's L. 598. 2 4 S. & R. 401.
$ 5 Watts, 395-6
‘ P. L. 1833, p. 129.
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provided that a patent might issue to the war- rantee without proof of settlement, etc. But it provided that the Act should not impair the rights of settlers already acquired, and that such patent should not be given in evidence against the settler where the title would come in question.
This Act of 1833 was the last important act of legislation upon that long drawn out litigation between warrantees and settlers. Then came the controversy in the Supreme Court itself, on the subject of new or vacating warrants.
In the case of Skeen v. Pearce,1 decided in 1821 (the true name was Skeer), the Supreme Court -consisting of Tilghman, Gibson, and Duncan- decided very positively that a settler could not enter upon warranted land to make a settlement under the Act of 1792, without a vacating warrant under the 9th section. (Jones v. Anderson2 and other cases were cited for this.) But a new doc- trine was advanced in Campbell v. Galbraith.3 In the mean time the Supreme Court had been en- larged in number, and was composed of Gibson, C. J., Rogers, Huston, Kennedy, and Ross. The fresh Judges were not so adherent to the claims of the warrantees, and, as a consequence, there was a
1 7 S. & R. 303. 2 4 Yeates, 569. 3 1 Watts, 70.
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better feeling towards the claims of the settlers. This became more evident in another branch of title to be adverted to hereafter. The opinion was delivered by Kennedy, J., with a concurring opinion from Huston, J .; Ross, J., took no part, and Gibson and Rogers acquiesced on a ground stated by Gibson, C. J., in Barnes v. Irvine, noticed hereafter. Kennedy, J., conceded that the prior doctrine of a presumptive prevention ipso facto, by the entry of the settler within the time allowed to the warrantee for the making of an actual settlement was sound. But on the ques- tion whether the settler could enter without a vacating warrant after the time had elapsed for performance of the condition by the warrantee, he held that the effect of the Acts of 1794, 1802, and 1804 (already cited) rendered the new warrant unnecessary ; and that the settler could lawfully enter, if the warrantee had failed to perform the condition of actual settlement within the two years after the ratification of Wayne's treaty with the Indians. This decision took place in 1832, and, as a consequence, the warrant titles being imperilled by it, a great disturbance arose. This eventuated in new suits, and in the passage of the Act of April 3, 1833 (already cited). Two cases came into the Supreme Court in October, 1835-
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to wit, Barnes v. Irvine,1 and Smith c. Collins. The former was argued by able counsel, McCal- ment and Thompson on one side and Banks and Pearson on the other. The opinion was delivered by Gibson, C. J., in October, 1836, in which he begins by stating the error under which he and Justice Rogers were led to acquiesce in the de- cision in Campbell v. Galbraith-viz: the omission of the last clause of the 4th section of the Act of 2d April, 1802 (in the Digest of Mr. Pardon, published in 1830). The doctrine of Campbell v. Galbraith was reversed, and the Court again stood upon the broad ground that the warrantee was excused by the prevention of the Indian war from making his settlement until the end of two years after the ratification of Wayne's treaty, and that the settler could not enter for the forfeiture, even after the two years had expired, without obtaining a vacating warrant.
On the argument of the case in 1835, the Judges, excepting Judge Sergeant, who came upon the bench after the decision in Campbell . Galbraith, were equally divided in opinion. At his request the case was held over for his exami- nation, he not being familiar with western land titles. In the mean time he read up, and this led
1 5 Watts, 497-505.
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to the making of his Treatise on the Land Laws of Pennsylvania. After the discovery of the omission by Mr. Purdon of the proviso to the 4th section of the Act of 1802, Kennedy and Huston, J.J., seemed not to have insisted on their interpre- tation of the Acts of 1794, 1802, and 1804. The breadth of the opinion in Barnes v. Irvine was, however, not so important, as the Act of 1833 had dispensed with the condition of settlement on part of the warrantee. In this long controversy it is manifest the legislative mind turned toward the settlers, while the judicial mind stood on the other side, until the Legislature ended the contest by the Act of 1833.
This termination against the settlers of the controversy upon the 9th section of the Act of 3d April, 1792, as to the necessity of obtaining a va- cating warrant, did not, however, quiet titles. There remained another contest, continuing for years, arising out of the application of the Statute of Limitations to the possession of the actual settlers. For a long time the Supreme Court stood firmly on the side of the warrantees, but gradually this strictness gave way; and finally, under the influence of an infusion of new blood upon that bench, the rights of the settlers were broadened and ripened into a possession that quieted the title in many remaining cases, which had not been settled at law, or by compromise.
SETTLEMENT, AND LAND TITLES. 159
The early doctrine was, that a settler, who enters on land which had been warranted and surveyed, or had been patented to another, being a tres- passer, acquired no right under the Statute of Limitations, beyond the land actually cultivated or inclosed for twenty-one years. This was termed his pedis possessio, or actual possession. All the woodland, outside, was deemed at law to be in the possession of the warrantee or patentee by reason of his title. This was the presumptive possession of the owner of the warrant or patent. Consequently, as the land first cleared, and fenced or cultivated was small in the beginning of the twenty-one years, the statute, as thus interpreted, protected the settler to the extent only of his original improvement, which was often only a very few acres-perhaps only three or four out of a four hundred acre tract. In other words, the title by limitation was confined to the few acres only held by a pedis possessio in the beginning, and could not be constructively extended to the unimproved land. The case of Miller v. Shaw,1 decided in 1821, seemed to settle this doctrine conclusively. Gibson, J., opened his opinion by saying, it is a well established principle that there can be no construction in favor of a wrongdoer.
1 7 S. & R. 129.
-
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After this came the case of Royer v. Benloe, in 1823.1 It was argued most elaborately; but the Supreme Court held it plainly came within the principle of Miller v. Shaw. The Court below had held that a clearing and cultivation of the land, within the defined limits of the occupant, in two parcels half a mile distant from each other, and a use of the woodland by cutting when and where it suited his convenience, protected every part of the land so designated. This was decided to be error, and the judgment below was reversed. Chief Justice Tilghman repeated the principle stated in Miller v. Shaw, in these words : "He who enters without title is a trespasser, and has no constructive possession, but is limited to the spot actually occupied." Yet the Chief Justice, in a few words of exception, where the owner con- fesses himself to be out of possession, gave rise to a doctrine of a presumptive ouster, which afterwards became the foundation of a great change in the doctrine of possession under the statute. One of the examples given by the Chief Justice was where an owner permits the settler to pay the whole of the taxes on the land for twenty-one years, without objection on his part.
McCall v. Neeley,2 in 1834, gave occasion for
1 10 S. & R. 303.
2 3 Watts, 69.
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the application of this exception; and what is remarkable, in an opinion by Chief Justice Gib- son, who before and afterwards, gave strong ut- terance to the old doctrine. In the beginning of the opinion he gave the fresh idea logic and strength. However, the Court had increased from three to five Judges, at least two of whom had been reared in a different school. The plaintiff was a patentee, and the defendant a settler on the whole tract, who continued in possession for twenty-one years, paying the taxes on the whole land. The Chief Justice, after announcing the former doctrine in clear terms, then turned to the doctrine of disseisin at common law, and discuss- ing it awhile with not very decisive result, said : "The principle I have thus attempted to enforce may seem inconsistent with the doctrine of Miller v. Shaw (7 S. & R. 129) ; but it is to be observed that the Court had in view the case of an intruder claiming no more than the rights of a settler, which it has been shown give no possession of anything but the land immediately occupied ; and this much it is proper to say, in order to restrain the generality of expressions used, more particu- larly by myself." And, indeed, this apology seemed to be necessary, for in a few moments he started afresh thus : " But may not one who entered originally as a settler or squatter change the char-
11
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acter of his disseisin by exercising acts of owner- ship under the title of the dissesee, and thus become a disseisor by color of title?" He then refers to the dictum of Chief Justice Tilghman in Royer v. Benloe (10 S. & R.), repeated by Justice Rogers in Read v. Goodyear (17 S. & R.), that payment of taxes raises a presumption of ouster of the whole tract; and of acquiescence of the owner as an acknowledgment of ouster. Yet the same reasoning had been used before in many cases with- out effect. Indeed, the payment of taxes by the settler for the whole tract was a necessary inci- dent of the law itself, which subjected the tenant in possession to the payment of all the taxes. And what makes the reasoning in McCall v. Neely more remarkable is, that at the same term, September, 1834, in Sweeny v. Mccullough1 the doctrine of Miller and Shaw, and Royer and Benloe, was reasserted by Justice Rogers with renewed tenacity. He even says, that after these two solemn decisions the question should be at rest. Yet to those who understand these settle- ment cases the only difference between McCall v. Neely and Sweeny v. Mccullough is the proof of the payment of the taxes in the former, while the presumption of the payment of them arises in the
1 3 Watts, 345.
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latter quite as conclusively by operation of law, from continued possession, and the legal mode of assessment and taxation. However, this nice dis- tinction threw the first ray of light upon the titles of these benighted settlers, and counsel soon began to improve it.
The next attempt to hold title by limitation to the whole of the tract arose in the case of Ross v. Barker.1 There was no proof of an early defini- tion of boundary by the settler, or proof of the actual payment of taxes by him, and the Court confined the operation of the statute to eight acres held by pedis possessio for twenty-one years, This was a very noted case, the claim of the settler being to four hundred acres, embracing parts of the two warrants of Daniel Broadhead, heretofore referred to, as issued on the 3d of April, 1792, for land opposite to the great falls of Big Beaver Creek; the same land on which the town of Beaver Falls, in part, stands. But the opinion of Chief Justice Gibson gave another ray of hope in the effect he seemed to attribute to an official survey by a settler under the Act of 1792. This intimation was taken hold of by the writer in the case of Lawrence v. Hunter,2 and resulted in the reversal of the judgment of the
1 5 Watts, 391.
3 9 Ib. 64.
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Court below, and establishment of the doctrine that an official surrey for a settler under the Act of 1792 gave a color of title to the land within the survey, and thereby title to the whole sur- vey under the Statute of Limitations.1
In the mean time, however, Lawrence v. Hunter had received an accession of strength from the reannouncement of the doctrine of McCall v. Neely, in the case of Criswell v. Altemus,2 on the east side of the Allegheny River. The doctrine repeated in it can be best stated in the language of Kennedy, J., who delivered the opinion. After referring to some of the cases I have noticed, he says : "Though I cannot recur to any case where the question has been raised directly and adjudi- cated by this Court in the affirmative; nor am I certain that any such has occurred; yet such has been the settled opinion in it for some time back, that where an intruder enters without color of title into, and settles with his family upon, an unseated tract of land belonging to another-who claims it under warrant and survey, either with
1 This case was reached on Saturday afternoon, and the Court declined to hear it, but said it would be taken on written argu- ments. Printed paper-books were then not in use. Mr. Forward was willing, the writer being a young lawyer. However, my argument, found at length in the report, prevailed. 2 7 Watts, 365.
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or without a patent from the Commonwealth-and having settled upon, claims it as his own, by exer- cising acts of ownership over it, from year to year, in putting up buildings upon it, clearing and fencing more or less of it, and using the whole of it according to the custom of the country-that is, the clear land as arable, or meadow, or pasture, and the woodland for obtaining from it timber as often as the settler shall have occasion for it to answer his purpose-also, returning the whole of it to the assessors as his own, and paying taxes thereon, when assessed, for a period of twenty-one years, will be sufficient, under the operation of the Statute of Limitations, to protect him in posses- sion of the whole of the tract or survey, includ- ing the woodland as well as the improved parts of it."
It is unnecessary to pursue the subject of title by limitation further. Criswell v. Altemus, and Lawrence v. Hunter became the foundation of other cases in which the rights of the settlers were supported after an adverse possession of twenty-one years. The general doctrine of the statute does not fall within the scope of the design of the writer, though many cases in after years arose, and many interesting discussions took place, such as occurred in the case of Hole v. Rittenhouse, wherein the contest between the late
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Chief Justice Black and his colleague, Justice Lewis, took a form which made the discussion State-wide in its interest.
It would extend this sketch too far to recount the great number and variety of decisions made under the Act of 3d April, 1792. Besides, many are so well stated by Charles E. Smith, Esq., down to the year 1810, in his admirable note in the second volume of his Laws, and so many are col- lected and arranged under various heads by Mr. Wharton, in his Digest of Pennsylvania Decisions, the labor is unnecessary.
Having accomplished the work of sketching pretty fully the history of the lands in the north- western part of the State, acquired under the Indian purchases of 1784, 1785, and 1789, at Fort Stanwix, Fort McIntosh, and Fort Harmar, and the history of the great questions which arose under the legislation applicable to these lands, further labor is unnecessary. In this work I hope I have rescued from oblivion many matters of great interest, and exhibited the trials and suffer- ings of those who gave their toil, and some their lives, in the development and improvement of this interesting and important section of the State.
Some matters of interest will be found in the Appendix.
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APPENDIX.
ADDRESS OF DANIEL AGNEW AT THE DEDICA- TION OF THE NEW COURT-HOUSE OF BEAVER, PENN'A.1
LADIES AND GENTLEMEN: There are occa- sions when the celebration of a public event, by appropriate ceremonies, is instructive to those whom it concerns, marking their progress as a people in refinement and culture; and this one is eminently so. What can be more deeply in- teresting to American freemen than the dedication of a temple to the service of that great and ruling principle, upon which hang all their rights, their interests, and their happiness ?
Law ! Grand, immutable, inscrutable energy ! Springing from the unfathomed depths of the Great Jehovah, permeating all his works, and carrying blessings everywhere, it is the type and the very basis of human institutions. Deprived
' This Address is given because its contents are germane to the subjects of this Treatise.
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of human law, what would be the condition of man? Without it might would be right, fraud success, and violence redress. And without law what is justice? A form without life, a voice dying on the air. To give efficacy to this great regulating, refining, enduring principle, you have assembled this day to dedicate this beautiful structure to the service of the Ministry of Justice. It is a building worthy of its projectors, creditable to those who planned and built it, and a testi- monial of honor to the people who gave their means to erect it. Long may it stand, a work of high art, a monument of liberality, and a tower of safety for the rights of the people.
This house marks an epoch in the history of the county. As we survey its surface we behold the evidences of improvement in the physical and mental condition of its inhabitants, and mark the progress made since its organization. If we recur to the first decade of the century, we discover a people in a rude state of civilization, living in round log cabins, made with the axe and the auger-drawing a scanty support from the earth by the labor of their hands, and possessing few comforts and no luxuries-simple in garbs woven by their own hands, and colored from the barks of the forest. They were without much educa- tion, uncouth in speech, and unpolished in man-
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ners. Yet, to their praise be it spoken, they were, notwithstanding these accidents of situation, vir- tuous, sincere, hospitable, courageous, and honest; having strong religious convictions, a just sense of right and wrong, and full of patriotic fire. Such were the early settlers of Beaver County- not barbarous, but made primitive by the wilder- ness around them. Their type was the sun rising in cloud and fog, and half obscured. Now, look- ing abroad, as when the orb of day has risen to meridian splendor, casting effulgence on every hand, we take in a people abounding in wealth and comfort, enjoying the advantages of educa- tion in manners, morals, learning, and art; and gaining a bountiful supply for all earthly need, from trades, professions, and avocations unknown to their simple ancestors. No longer confined to the scanty avails of manual efforts, they reach far into the realms of thought, drawing forth the rich fruits of all the intellectual forces. Now schools, academies, and colleges stand thickly on the soil ; great mills and manufactories utilize its products ; beautiful dwellings, and graceful and grand crea- tions of architecture adorn and dignify the rich domain; the wolf, the bear, or the catamount, once contesting the title of the settler to the forest around him, no longer alarms with his howl or his ery, while the ox, the horse, and the sheep
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now fill their places; and the forest itself has given way to green pastures, and fields of waving grain and bending corn. Science and art, too, have added their grand achievements in the tele- graph and the railroad, conveying instant thought and the persons and products of men to distant climes. Even now we listen to the sound of far- off voices and of music, brought by the telephone over hill and dale, and mountain and valley, and across the rivers that run to the sea. The sun, too, has turned portrait painter, and takes your likeness in a few seconds.
But the changes of nature and in the circum- stances of the people are not the only mutations we see. Law is the central thought of this dedica- tion, and the change in the subjects, character, and forms of litigation is not less remarkable. In the earliest times these were of the simplest kinds. Trespasses on lands or cattle, or the humble personal effects of the settler and the small tradesman; breaches of petty contracts for work or of sale, and contracts for lands in their most simple state; these were the common sub- jects of conflict, and brought into use the simplest forms of actions-trespass, and on the case, re- plevin, trover, assumpsit, covenant, and in eject- ment. Let me instance a suit brought at the first term, February, 1804. Thomas Hartshorne
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v. Thomas Sprott, Esq. Replevin for one sow and ten pigs, marked with a crop off the right ear and half a crop out of the under side of the left ear, of the value of $10. Verdict for the defendant-a new trial, and judgment for the plaintiff for $6 damages-costs, $35.87. The squire paid well for his pork. Beyond these simple forms of action the rural lawyer rarely looked. Perhaps he had read of others in black letter books, but they were useless mysteries.
Now mark the contrast! The land is filled with new kinds of business, new agencies for their exe- cution, new forms of art, new products of labor, new machines, new wants, new supplies, and novel- ties of every sort. Even new beings exist-arti- ficial persons, creations of the law-these have arisen with new purposes and new methods of pro- ceeding. Corporations lie thickly about us. Some assist at birth and others at death; some take care of the living. and others of the effects of the dead. They take charge of our property and per- sons, insure them against danger and death, trans- port them from place to place, educate, facilitate, and employ. Higher types of hand labor and of machine work, and grander modes of inter- course now fill the earth. Commerce swells the avenues of business with new subjects of trade, new forms of contracts, and new agencies of per-
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formance. These, and others too numerous to mention, have brought new laws and new modes of proceeding as various as shells on the sea- shore; and new remedies for wrongs have multi- plied like the locusts that swarm over the plains.
Now bills for specific performance, bills for injunction, bills for account, and bills without count ; bills of discovery, of revivor and inter- pleader, writs of mandamus, quo warranto, of error coram vobis et nobis, and writs that few under- stand; actions for death and negligence against cities and towns, corporations and individuals. Complaints of all kinds, more than one can state, now thicken around the crowded brain of the lawyer until he seeks refuge in specialties, and we are introduced to the corporation lawyer, the insurance lawyer, the admiralty, the land and real estate, the orphans' court and quarter sessions lawyer; the proctor, the solicitor and the coun- selor. They swarm from the hive like bees, and the ladies will be glad to know that, like bees, they take their queens.
But we are reminded that the law must have its place of enforcement. A court is said to be a place where justice is judicially administered. Take care of the pronunciation of this definition, lest "in" unite with "justice," and the caviller say a truth is told. The location of the seat of jus-
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tice at Beaver brings up memories of local history, some of which operated on the minds of the men of 1800 in placing it here. On this beautiful plain, in times long gone by-more than a cen- tury and a quarter ago-the mercurial Frenchman found a lodging among the wild men of the forest, unsuited to Parisian taste, yet made fit by his loyalty to his king. In front flows the Ohio-the Frenchman's "La Belle Riviere," and the Indian's "Clear Water." Above, the Big Beaver rolls down over miles of rocky falls. Far back, before civilization had planted her footsteps on the virgin soil, it took its name, by translation from the In- dian tongue, from the useful animal inhabiting its waters. The town took its name from the stream, and the county its from both.
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