By an act of the General Assembly of Pennsylvania, passed on the
27th day of November 1779 (1 vol. State Laws, 622. Dall. edit.) the
estates of the late proprietaries were vested in the commonwealth,
subject to the following proviso:
'Sect. 8. Provided also. That all and
every the private estates, lands and hereditaments, of any of the
said proprietaries, whereof they are now possessed, or to which
they are now entitled, in their private several right or capacity,
by devise, purchase or descent; and likewise all the lands called
and known by the name of the proprietary tenths or manors, which
were duly surveyed, and returned into the Land-office, on or before
the fourth day of July, in the year of our Lord one thousand seven
hundred and seventy-six, together with the quit or other rents, and
arrearages of rents, reserved out of the said proprietary tenths or
manors, or any part or parts thereof, which have been sold, be
confirmed, ratified and established for ever, according to such
estate or estates therein, and under such limitations, uses and
trusts, as in and by the several and respective reservations,
grants and conveyances thereof, are directed and appointed.'
The present suit, and a number of other ejectments, were brought
for tracts of land, lying in York county; in all of which, the
general question was, whether the land was included in a tract
called and known by the name of a proprietary manor, duly
surveyed
Page 4 U.S.
402, 403
and returned into the land-office, on or before the 4th day of
July 1776?
The title of the lessor of the plaintiff to the premises in
dispute, was regularly deduced from the charter of Charles the 2d
to William Penn,1 provided there was a manor called and known by
the name of Springetsbury, duly surveyed and returned, according to
the terms and meaning of the act of November 1779.
The material facts, upon the controverted point, were these: At
the time that Sir William Keith was governor of the province, the
controversy between the proprietor and Lord Baltimore had arisen;
and many persons from Maryland intruded upon the adjacent lands in
Pennsylvania. Under the pressure of these intrusions, Sir William,
on the 18th of June 1722, issued a warrant to John French, Francis
Worley and James Mitchell, in which he recited, 'that the three
nations of Indians on the north side of Susquehanna are much
disturbed, and the peace of the colony in danger, by attempts to
survey land on the south west bank of the river, over against the
Indian towns and settlements, without any right, or pretence of
authority, so to do, from the proprietor, unto whom the lands
unquestionably belong; that it is agreeable to treaty and usage to
reserve a sufficient quantity of land, on the south-west side of
the Susquehanna, within the proprietor's land, for accommodating
the said Indians: and that the Indians had requested, at a treaty,
held on the 15th and 16th instant, that a large tract of land,
right against their towns on Susquehanna might be surveyed for the
proprietor's use only; because, from his bounty and goodness, they
would always be sure to obtain whatsoever was necessary and
convenient for them, from time to time.' Sir William's warrant then
proceeded, that 'by virtue of the powers wherewith he is entrusted
for the preservation of his majesty's peace in this province, and
with a due respect and regard to the propietor's absolute title,
and unquestionable rights, he directs and authorises, the persons
named in the warrant, to cross and survey, mark and locate, 70,000
acres in the name and for the use of Springet Penn Esq., which
shall bear the name, and be called the manor, of Springetsbury:
beginning upon the south-west bank, over against Conestogoe creek;
thence W. S. W. 10 miles; thence N. W. by N. 12 miles; thence E. N.
E. to the uppermost corner of a tract called Newberry; thence S. E.
by S. along the head line of Newberry, to the southern corner tree
of Newberry; thence down the side line of Newberry E. N. E. to the
Susquehanna; and thence down the river side to the place of
beginning: And to return the warrant to the governor and council of
Pennsylvania.' The survey being executed on the 19th and 20th of
June, was returned to the council, on the 21st of June 1722,
according to the following boundaries: 'From a red oak,
Page 4 U.S.
402, 404
by a run's side, called Penn's run, marked S. P. W. S. W. 10
miles to a chesnut by a run's side called French's run, marked S.
P.; thence N. W. by N. to a black oak marked S. P. 12 miles; thence
E. N. E. to Sir Wm. Keith's western corner tree in the woods 8
miles; thence along the S. E. and N. E. lines of Sir Wm. Keith's
tract called Newberry to the Susquehanna; and thence along the
river side to the place of beginning; containing 75,520 acres.'
Sir William Keith having commounicated these proceedings to the
council, on the second of July 1722, it was thereupon declared,
that 'so far as they concerned, or touched, with the proprietary
affairs, they were not judged to lie before the Board;' which acted
as a council of state, and not as commissioners of property. Col.
French (one of the surveyors who executed the warrant) then
undertook to vindicate the conduct of Sir Wm. Keith to the council,
stating that 'the warrant specified his true reasons; and that it
was, under all circumstances, the only effectual measure, for
quieting the minds of the Indians, and preserving the public
peace.' The warrant and survey, however, could not be returned into
the land-office at that time; for, it was said, that the
land-office continued shut from the death of W. Penn in 1718, until
the arrival of T. Penn in 1732: nor does it appear, that they were
ever filed in the land-office, at any subsequent period.
In order to resist the Maryland intrusions, encouragement was
offered by Sir W. Keith, and accepted, by a number of Germans, for
forming settlements on the tract, which had been thus surveyed; and
in October 1736, Thomas Penn having purchased the Indian claim to
the land, empowered Samuel Blunston to grant licences for 12,000
acres (which was sufficient to satisfy the rights of those who had
settled, perhaps, fifty in number) within the tract of land
'commonly called the manor of Springetsbury,' under the invitations
of the governor. But in addition to such settlers, not only the
population of the tract in dispute, but of the neighbouring
country, repidly increased.
The controversy with Maryland was finally settled in the year
1762, at which time James Hamilton was governor of the province;
and, on the 21st of May of that year, he issued a warrant of
re-survey, in which it was set forth, 'that in pursuance of the
primitive regulations, for laying out lands in the province, W.
Penn had issued a warrant, dated the 1st of September 1700, to
Edward Pennington, the surveyor general, to survey for the
proprietor, 500 acres of every township of 5000 acres; and,
generally, the proprietary one tenth of all lands laid out, and to
be laid out, that like warrants had been issued by the successive
proprietaries to every succeeding surveyor general; that the tracts
surveyed, however, are far short of the due proportions of the
proprietary; that, therefore, by order of the then
Page 4 U.S.
402, 405
commissioners of property, and in virtue of the general warrant
aforesaid to the then surveyor general, there was surveyed for the
use of the proprietor on the 19th and 20th of June 1722, a certain
tract of land, situate on the west side of the river Susquehanna,
then in the county of Chester, afterwards of Lancaster, and now of
York, containing about 70,000 acres, called and now well known by
the name of the manor of Springetsbury; that sundry Germans and
other afterwards seated themselves by leave of the proprietor on
divers parts of the said manor, but confirmation of their title was
delayed on account of the Indian claim; that on the 11th of October
1736, the Indians released their claim, when (on the 30th of
October 1736) a license was given to each settler (the whole grant
computed at 12,000 acres) promising patents, after surveys should
be made; that the survey of the said tract of land is either lost,
or mislaid; but that from the well known settlements and
improvments made by the said licenced settlers therein, and the
many surveys made round the said manor, and other proofs and
circumstances, it appears that the said tract is bounded E. by the
Susquehanna, W. by a north and south line west of the late dwelling
plantation of Christian Elstor, called Oyster, a licenced settler,
N. by a line nearly east and west distant about three miles north
of the present great roads, leading from Wright's ferry through
York-Town by the said Christian Oyster's plantation to Monockassy;
S. by a line near east and west distant about three miles south of
the great road aforesaid; that divers of the said tracts and
settlements within the said manor, have been surveyed and confirmed
by patents, and many that have been surveyed remain to be confirmed
by patents, for which the settlers have applied; that the
proprietor is desirous, that a complete draft, or map, and return
of survey of the said manor shall be replaced and remain for their
and his use, in the surveyor general's office, and also in the
secretary's office; that by special order and direction a survey
for the proprietor's use was made by Thomas Cookson, deputy
surveyor (in 1741) of a tract on both sides of the Codorus, within
the said manor, for the scite of a town, whereon York-Town has
since been laid out and built, but no return of that survey being
made, the premises were re-surveyed by George Stevenson, deputy
surveyor (in December 1752) and found to contain 436 1/2 acres.'
After this recital the warrant directed the surveyor general 'to
re-survey the said tract, for the proprietor's use, as part of his
one-tenth, in order that the bounds and lines thereof may be
certainly known and ascertained.' On the 13th of May 1768, the
governor's secretary, by letter, urged the surveyor general to make
a survey and return of the outline of the manor at least; the
survey was accordingly executed on the 12th and 30th of June; and
the plat was returned into the land-office, and, also, into the
secretary's office on the 12th of July 1768,
Page 4 U.S.
402, 406
containing 64,520 acres; a part of the original tract of 70,000
acres having been cut off, under the agreement between Penn and
Baltimore, to satisfy the claims of Maryland settlers. On the trial
of the cause, evidence was given on each side, to maintain the
opposite positions, respecting the existence or non-existence of
the manor of Springetsbury, from public instruments; from the sense
expressed by the proprietaries, before the revolution, in their
warrants and patents; from the sense expressed by the warrants and
patents issued since the revolution; from the practice of the
land-office; and from the current of public opinion. The general
ground taken by the plaintiff's counsel (E. Tilghman, Lewis, and
Rawle) was, 1st. That the land mentioned in the declaration is a
part of a tract called, or known by the name of a proprietary
manor. 2d. That it was a proprietary manor duly surveyed, within
the true intent and meaning of the act of the general assembly.
And, 3d. That the survey was duly made and returned before the 4th
of July 1776. The defendant's counsel (M'Kean, attorney general,
Hopkins and Dallas) contended, 1st. That Sir Wm. Keith's warrant
being issued in 1722, without authority, all proceedings on it were
absolutely void; and that neither the warrant, nor survey, had ever
been returned into the land-office. 2d. That governor Hamilton's
warrant was issued in 1762, to re-survey a manor, which had never
been legally surveyed, and was, in that respect, to be regarded as
a superstructure without a foundation. 3d. That the recitals of
governor Hamilton's warrant are not founded in fact; and that
considering the survey, in pursuance of it, as an original survey,
it was void, as against compact, law, and justice, that the
proprietor should assume for a manor, land, that had been
previously located and settled by individuals. The following charge
was delivered to the jury:
WASHINGTON, Justice. In this cause there are two questions, 1st.
Have the lessors of the plaintiffs a title to the land in question.
If they have, 2d. Has the defendant a better right? 1st. The
lessors of the plaintiffs, or those under whom they claim, were
once the sole owners and proprietaries, not only of the government,
but of the soil, of Pennsylvania, not in a political, but in their
private and individual capacities; not as trustees for the people,
as to the whole, or any part of the soil, but in absolute fee
simple, for their individual uses, and this right was no otherwise
defined, by concessions on agreements, by William Penn, or his
descendants, than to render them trustees for such individuals, as
should acquire equitable rights, to particular portions of land,
under general or special promises, rules and regulations, which
they may, from time to time, have entered into and established.
Page 4 U.S.
402, 407
Their right to appropriate lands to their own use, was not
derived from, or founded upon, any such rules or concessions, but
flowed from their original chartered rights, which bestowed upon
them the whole of the soil. But as it was their interest to
encourage the population and settlement of the province, they
erected an office, and laid down certain rules for its government,
and the government of those who might wish to acquire rights to the
unappropriated lands in the province, reserving to themselves a
right to appropriate one tenth of the whole to themselves, for
their private and individual uses. From hence the following
principles resulted: that all persons, complying with the terms
thus held out, acquired a right to the proportion of land, thus
appropriated, not only against other individuals, who might
thereafter attempt to appropriate the same land, but even against
the proprietor himself, unless he had previously, and by some act
of notoriety, evidenced his intention to withdraw such land from
the general mass of property, and to appropriate it to his
individual use. As a necessary consequence of this principle,
whenever such was his intention, or was made known by a warrant of
appropriation and a survey, to make out, and locate the ground thus
withdrawn, this was notice to all the world, that no right to the
land, thus laid off for the proprietaries, could be acquired by
individuals, without a special agreement with the proprietaries,
which might, or might not, be upon the common terms, as the
proprietors might choose. But if before such special appropriation
by the proprietaries, an individual had, in compliance with the
office rules, appropriated a tract, within the bounds of the tract
thus laid off for the proprietaries, such prior appropriation,
would no otherwise affect the rights of the proprietaries, than in
relation to the particular tracts thus claimed. His right to the
residue, remained unaffected. On this ground the right of the first
proprietor stood at the time of his death, and so continued to
exist, in his legal representatives, until the year A. D. 1779,
when a law of this state was passed, divesting the proprietaries of
all their estate, right and title, in, or to, the soil of
Pennsylvania, and vesting the same in the Commonwealth. But in this
law, certain portions of land, within the Commonwealth are
excepted, and the right of the proprietaries, to such portions, is
confirmed and established forever. The lessors of the plaintiffs,
who most undoubtedly are entitled to all the rights of the
proprietaries, are compelled to date their title, from this law;
and therefore it is necessary for them to show, that the land in
question, is part of a tract of land, called and known by the name
of a proprietary- tenth or manor; which was duly surveyed, and
returned into the land-office, on or before the 4th of July
1776.
They are to prove, 1st, that this was in 1779 called and known
by the name of a proprietary-tenth or manor. The words of the law
are peculiar. As to their private rights, they must be such
Page 4 U.S.
402, 408
whereof they were in 1779 possessed, or to which they were
entitled. But as to the tenths or manors it was sufficient if they
were known by that name, and had been surveyed and returned, before
the 4th of July 1776. These expressions respecting the manors, were
rendered necessary, to avoid giving the word manor a technical
meaning; for there were no manors, in a legal acceptation of the
word, in this state, but there were many tracts of land
appropriated to the separate use of the proprietaries, to which
this name had been given. The first inquiry therefore, under this
head, is, was the land in question part of a tract of land called,
and known as a manor, in the year 1776 or 1779? To prove this fact,
the licences granted by Thomas Penn, in 1736, to about 50 settlers,
in different parts of the first, as well as second, survey, in
which this is called the manor of Springetsbury, is strongly relied
upon, to show, that, even at that early period, it had acquired
this name: The tenor of the warrants afterwards granted for lands
within this manor, varying from the terms of the common warrants,
and this variance proved by witnesses, as marking this for manor
land: The testimony of witnesses to show that the west line of this
manor was always reputed to go considerably beyond York to
Oyster's. The practice of surveyors and public officers, whenever
warrants were issued to survey lands in the manor. But even if this
tract of land had never acquired the name of a manor, prior to
1768, the survey made of it in that year, as a manor, is
conclusive. From that period it acquired, by matter of record, the
name of a manor; and so it appears, by the evidence in the cause,
it was called and known.
2d. Was it duly surveyed and returned into the land office
before the 4th of July 1776? That it was surveyed in 1768, is
admitted; but, it is contended, that it was not duly surveyed. It
is so contended, because it was surveyed in 1722. That survey it is
said, was void, because made without authority, was not executed by
the surveyor general, and was returned into the council of state's
office. That survey then being void, it is said, vitiates the
survey of 1768: the former being considered as the foundation, and
the latter as the superstructure. The survey of 1768 is executed,
it is argued, under a warrant of re-survey in 1762, and
consequently the repetition of an act which has no validity, cannot
give it validity. It is further argued, that the recital of the
loss of the survey of 1722, is a mere pretence, a fraud, to enable
the proprietaries to exchange bad land for good. Now I do not
understand this kind of logic: it is far too refined for the sober
judgment of men who have to decide. If the invalidity of the first
survey can have any effect upon the second, I should suppose it
would establish it beyond all doubt; because, if the first survey
was good, and if the warrant of 1762 was merely an order to retrace
the lines of that survey, the counsel might, with some plausibility
at least, argue that the surveyor was bound to pursue the lines
Page 4 U.S.
402, 409
of the lines of the former survey; and this would give colour to
his observations, founded on the mistake of the public officers, as
to the proper lines of the survey. But if the first survey was
unauthorized, and utterly void, then the second could not, in the
nature of things, be a resurvey. Whatever words were used in the
warrant, there is no magic in that word. If there never was a
former survey, there could be no resurvey; and consequently the
survey, of 1768, was an original survey, founded on a special
warrant, making out the lines and bounds, by which the surveyor was
to go, and such is the fact in this case, although the survey of
1722, is referred to in the warrant of 1762, yet the lines to be
surveyed under this second warrant, are specially described. To
those he was confined, and had he departed from them, the survey
would, unless it was rectified by acceptance, have been void, as
against the proprietary, and he might have directed it to be made
against. It is not denied, but that the survey of 1768, is in
conformity with the warrant. It was accepted as a valid survey, and
I cannot see upon what ground the defendants, or any other person,
can now say, that it was void. Had not the proprietary a right to
appropriate to his private use, the land included within the survey
of 1768, in part of the tenth, which he had always reserved to
himself? And if the warrant and survey makes the appropriation,
what does it signify, whether there was a prior survey or not? or
whether it was good or bad? True, if previously to the warrant of
1762, third persons had acquired a right to parcels of this land,
or had done so afterwards, and before the survey in 1768, (but
without notice of the warrants,) the proprietaries would have been
bound to make them titles, upon their complying with the terms of
the grants to them. But this could not impeach his title to the
residue of the land, comprehended within the lines of the survey.
Upon the whole then, the court is of opinion, that this manor was
duly surveyed; and it is admitted, that the survey was returned
into the land office, before the 4th of July 1776. If so, the
plaintiffs' title is unquestionable.
2d. Has the defendant a better title? He claims by warrant, in
1747, regularly brought down to him, for 95 acres. He has no
patent, but yet by the common law of this state, a warrant and
survey, if the consideration be paid, is considered a legal title
against the proprietary, as much so as if he had a patent. If the
consideration be not paid, then the legal title is not out of the
proprietaries; but still the warrant holder has an equitable title,
which it is in his power to render a legal one, by paying what is
due to the proprietaries. No proof is given of payment by the
defendant, or any one of those under whom he claims, but you are
called upon to presume it from length of time. Now in a case of
this sort, there is no room for presumption, the very circumstance
of the defendant appearing in court without a patent, or without
shewing, or pretending, that any ever was granted, destroys the
Page 4 U.S.
402, 410
presumption, which length of time might have created. For if he
had paid, he would have been entitled that moment to a patent: the
one was the necessary consequence of the other. Men might long
forbear to call for this confirmation of their titles, from the
inconvenience of paying the consideration, but that he should pay,
and not go on to perfect his title, is altogether improbable, and
certainly not to be presumed; but if the jury could presume any
thing from length of time, yet that presumptions may be repelled
and in this case is.
The deed of 1771, from Pence, the grantee, to Shultz, proved
that he had not paid, and the deed from Shultz's executors to
Siump, in 1794, that it was not then paid. The defendant,
therefore, has not a legal title to authorize a verdict in his
favour; but he has an equitable title, and may compel a grant, upon
paying, or tendering, what is due to the plaintiffs, with costs of
this suit. And if the plaintiffs should then refuse, this court
sitting in equity, would compel them, at the expence of paying
costs. In the state court, I understand, the jury may make a kind
of special or conditional finding, in consequence of the having no
court of equity. But this court having equitable jurisdiction, your
verdict must be general.
Verdict for the Plaintiffs. [
Footnote 2]
Footnotes
Footnote 1 The original
charter was given in evidence upon the trial.
Footnote 2 As some of the
persons, interested in the ejectments brought for lands in
Springetsbury manor, had purchased from the state; and as the state
would be entitled to all arrears of purchase money, if the
proprietary title should not be established; the legislature bad
authorised the governor to employ counsel to assist the counsel of
the defendants. After the decision of the above case, the
legislature appointed James Ross and James Hopkins, Esqrs, to take
defence in the next ejectment, Penn's lessee v. Groff, which was
tried in April term 1806; and upon the same charge, the same
verdict was given. The defendant's counsel, having tendered a bill
of exceptions, to the charge of the court, arrangements were made
to obtain a final decision in the Supreme Court, upon a writ of
error. It appears, however, from the journals, that the legislature
is not disposed to interfere any further; and, I have been
informed, that terms of compromise have been proposed, and
accepted, by the parties.