[Marlatt v. Silk.]

Keeper, 4 Bin. 161, and Gilday v. Watson, 2 S. & R. 410. The only difficulty is, that without a survey, the claim of the settler is so indefinite, that an action cannot be supported by reason of the uncertainty of the land to be recovered: but in the first place, it cannot be denied that the land on which a man has built a house, and that also which has been cultivated and enclosed by him, may be ascertained with absolute certainty. Neither do we think it can be denied, that in the case now under consideration, the claim of the settler may be reduced to certainty, because it is bounded by the lines of adjoining surveys. So likewise may a claim by a settlement be precisely ascertained, when the settler has defined his limits by an unofficial survey marked on the ground, and made known to the neighbourhood: Chief J. Tilghman in Luck et al v. Duff, 6 Sergeant & Rawle, 19:. The holder of a later warrant is not permitted to encroach upon a prior settler, and cut off land adjacent to his improvement; under the pretext that there is surplus land, and that the settler can fill his claim in another direction. Such encroachment was held unlawful, although made in 1814, upon a settlement which commenced in 1775, and upon which no legal survey had ever been made: Blair v. M'Kee, 6 Sergeant & Rawle, 193: and the same principle is recognised in Breck et al. v. Moon et al. 7 Sergeant & Rawle, 330, 335.

These cases show how settlement rights have been appreciated in Pennsylvania. They demonstrate not only that Watson, by waving his Virginia entry, and obtaining a warrant and patent under Pennsylvania, might have held the lands against the patents of the defendants, but that by waving his Virginia entry, he might have held it under his actual settlement alone. Had a controversy arisen in a Pennsylvania court, between Watson and Hand, prior to the ratification of the compact in 1784, Watson's settlement right would have been adjudged, without hesitation, to be valid; and Hand's title would have been treated as a nullity. The fact, if true, that Watson originally settled under what he supposed to be the rightful jurisdiction of Virginia, or that he had acknowledged her jurisdiction by appearing before her land commissioners, and procuring an entry of his land, would not have impaired, or in the least affected the merits of his settlement title. Pennsylvania always favoured and encouraged actual settlements, and they were sanctioned and held sacred, without any inquiry as to the opinion which the settlers might have entertained upon the abstruse and doubtful ques

[Marlatt v. Silk.]

tion of state jurisdiction. Had Pennsylvania receded from the contest, and yielded to Virginia without any compact the territory which included the land in dispute, Watson's title would have been unquestionable. For although it may be true, that before the passage of the Virginia act of May, 1779, the land in dispute might have been entered and patented under that state by any person, notwithstanding a prior settlement by another; and although the same act of assembly of 1779 may "apply only to controversies between mere settlers;" yet the fourth section of that act enacts, "that all persons who at any time before the first day of January, 1778, have really and bona fide settled themselves and, their families upon any waste lands on the said western waters, to which no other person hath any legal right, a claim shall be allowed for every family so settled, of 400 acres of land:" and as Watson had really and bona fide settled himself with his family on the lands in dispute, in 1772; was residing on it as a bona fide settler in January, 1778, and May, 1779, he was therefore entitled, as a settler, to the protection of the act, until a superior title by settlement, warrant or patent, under Virginia, should appear against him. No such superior title has been shown to have existed in General Hand; and as against him, Watson's title, in a Virginia court, would have been valid and undeniable. How then does it happen, that this title, which in the absence of the compact would have prevailed without difficulty in the courts of either state, is under and by the compact rendered worthless? The reason assigned by the court below for this strange result is, that Watson, instead of obtaining a warrant from Pennsylvania, has lost his preference by resorting to his Virginia entry, and thereby asserting a different jurisdiction.

Had the compact been less careful in saving and preserving the rights of property originating under the respective governments than we find it to be; had the claimants under Virginia been thrown upon the courtesy or compassion of Pennsylvania without a guaranty or stipulation in their behalf; it might be very properly urged, that a party who persisted in holding on to his bad title, because it was the cheapest, should not have the benefit of a good one which he had thereby repudiated. But the compact is not silent on the subject of Virginia claimants. Their rights are anxiously guarded by clauses which would seem to exclude the possibility of their being either postponed or frittered away by any effort of construction. "The private property and rights of all persons acquired under or recog

[Marlatt v Silk.]

nised by the laws of either country, are saved and confirmed tʊ them, although they should fall within the other; and preference shall be given to the elder or prior right, whichever of the said states the same shall have been acquired under, such person paying the same purchase money which would have been due to the state under which they claimed the right." The reasoning of the court below is repugnant, not only to the sense and spirit of the above provision in the compact, but is flatly opposed to its words. If Watson could not, without disadvantage or peril, obtain a patent upon his settlement and Virginia entry, on paying the price originally due to Virginia; then the stipulation which proposed to set forth the terms upon which all his rights should be saved, was a mere decoy or trap. The injustice of this exposition is not limited to settlers under Virginia; it would be equally fatal to the claim. founded upon warrants and surveys under that state. The rights to perfect such title by a patent from Pennsylvania, on payment of the Virginia price of the land, if not already paid; rests upon a footing neither broader nor more safe, than that of the settler with a Virginia entry.

The rights of both are secured by the saine words; and if the nonpayment of the Pennsylvania price of the land, with interest from the origin of the title, is a fatal delinquency in the one case, it must be equally so in the other; and the consequence must necessarily be, that the holder of a Virginia title, of any description, which has been completed by a patent from Pennsylvania, on paying the same purchase or consideration money, which would have been due from him to Virginia, must fail in a conflict with a Pennsylvania title; although the Pennsylvania title be not the elder or prior right. These considerations show that the construction given to the compact, by the court below, is hostile to its terms; and would be, if carried out in practice, disreputable to Pennsylvania. The titles of Watson and Hand constituted one of the subjects of controversy, in the case of Brien and Wife v. Elliot and others, reported in 2d Penn. Rep. 49. In that case the court was equally divided: and the opinion which appears in the printed report would not, aside of its intrinsic merits, be entitled to any weight in an inferior court of the state in which it. was pronounced: much less will it be regarded here as conveying the views of the supreme court of Pennsylvania upon the question under consideration, as under the law of Pennsylvania one verdict and judgment are not conclusive; and it is perhaps duc

[Marlatt v. Silk.]

to the learned Chief Justice to remark, in conclusion, that his opinion may have been influenced by an unfortunate misconception of the facts of the case. He supposed the title of Hand to have originated in a location bearing date the 3d April, 1769, three years before the settlement of Watson. But the commencement of Hand's title was the warrant of 1773 above referred to. No location was given in evidence by either party applicable to this land. But even if it were so regarded, the construction given by that court, to the compact with Virginia, although regarded with all proper deference, would not be adopted by this court as a matter of course. The possibility if not the certainty of a different and opposite construction, prevailing in the courts of Virginia, makes it both proper and necessary, that the true meaning of the compact should be sought for and declared by this court, unfettered by the opinions of others. It is found in its terms, to recognise and save every description of right. The high contracting partics designed that the benefits secured by it to the claimants under both governments, should be equal and reciprocal; and that their titles should have, respectively, all the advantage and efficacy, that could be derived under the laws of either. This is so plain as never to have been questioned or doubted, in any case arising under the compact.. In the case of Brien et al. v. Elliot, 2 Penn. R. 60, 61, it is premised as the basis of the argument of Chief Justice Gibson, an argument which conducted him to a conclusion directly opposite to the premises from which it was drawn. His language is as follows: "Whatever may have been the case originally, the titles of both 'states' were, as regards the question of priority put by the compact, exactly on a footing, and are by a fair construction to be treated as if they had always been so. Unless they were considered to have been in relation to each other, valid coexistent rights from the beginning, as far as regards jurisdiction, how could there be any comparison as to dates?"

The very basis of the compact is an admission that the jurisdiction shall be taken to have been in common, and that claimants under the one state shall be entitled to the same protection against claimants under the other, "that they would be entitled to between themselves." Upon this construction of the compact, it would scem necessarily to follow, that Watson in a contest with Hand, who claimed under Pennsylvania warrants, would be entitled to all the advantages of a Pennsylvania settler, and must of course prevail. But this natural inference was rejected by the learned Chief Justice; VOL. XI.-B

[Marlatt v. Silk.]

and instead of allowing to Watson's improvement the merit to which, under his own proposition it was entitled, he treats it as a mere Virginia settlement, giving no colour of title till 1779; and then, by transmuting Hand's Pennsylvania warrants, into Virginia warrants, he discovers that they are the "elder or prior title." With all possible respect for the learned Chief Justice, we must be allowed to say, that in this instance, the use made of his own construction of the compact is most inapt and injurious. It is not true that as against Pennsylvania warrants, Watson had no colour of title prior to 1779; as against those warrants, his title under the laws of Virginia, was valid from the date of his settlement. But the learned judge supposed that by the compact, Hand's Pennsylvania warrants were converted into Virginia warrants; and that the rule applied in the case of Jones v. Williams, 1 Wash. Rep. 231, which was a conflict between Virginia claimants, unaffected by the compact, was decisive of the present case. We contend, however that if under the compact a Pennsylvania warrant is clothed with the merit and efficacy of a Virginia warrant. a Virginia settlement is also invested with all the attributes and advantages of a Pennsylvania settlement. This is not only the clear import of the compact, but it is adopted by the learned Chief Justice himself; and it is only by denying to his own rule, the reciprocity secured by the compact, and dictated by every principle of reason and equity, that Watson's title can be rendered doubtful.

The learned Chief Justice says, that Virginia "having recognised the grants of another state as being equally valid as her own, it is fair to say she recognised them as being attended with all the incidents of her own, against which, it appears by her own court, the doctrine of priority by relation never prevailed." This reasoning of the learned Chief Justice may be very pertinent and true, but if it be so, then it must follow; that Pennsylvania also having recognised the rights of all persons acquired under, founded on, or recognised by the laws of Virginia, as being equally valid as her own; it is fair to say, she recognised them as being attended with all the incidents of her own: consequently, that Watson's settlement is, in the compact, recognised by her, as equally valid as a Pennsylvania settlement. This is plain reasoning, and a fair exposition of the compact. The error of the learned judge is in applying it to the claims originating under Pennsylvania, while he denies its application to claims originating under Virginia.