HUIDEKOPER'S LESSEE v. DOUGLASS.1 Under the act of Pennsylvania, of 3d April, 1792, for the sale of the vacant lands, &c., the grantee, by warrant of a tract of land, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land for the space of two years from the date of his warrant, but during that time persisted in his endeavors to make such settlement and improvement, is excused from making such actual settlement as is described in the ninth section of the act, and the warrant vests in such grantee a fee simple. THIS was a case certified from the circuit court of the United States, for the district of Pennsylvania, in which the opinions of the judges of that court were opposed. The action was an ejectment to try the title of the "Holland Company" to a very large tract of land in Pennsylvania, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, purchased of that state under the act of assembly of the 3d of April, 1792, which act is as follows, viz.: ty-four, and lying east of the Alleghany river and Conewango creek, shall be reduced to the sum of five pounds for every hundred acres thereof; and the same shall and may be granted at the price aforesaid, in the manner and form to any person or persons applying for the same accustomed under the laws heretofore enacted and now in force. SEC. II. And be it further enacted by the authority aforesaid, That from and after the passing of this act, all other lands belonging to this commonwealth, and within the jurisdiction thereof, and laying north and west of the rivers Ohio and Alleghany, and Conewango creek, excepting such parts thereof as heretofore have been, or hereafter shall be, appropriated to any by, offered for sale to persons who will cultivate public or charitable use, shall be, and are hereimprove and settle the same, or cause the same for the price of seven pounds ten shillings for to be cultivated, improved and settled, at and every hundred acres thereof, with an allowance of six per centum for roads and highways, to be located, surveyed and secured to such purchas ers in the manner hereinafter mentioned. *SEC. III. And be it further enacted by [*3 the authority aforesaid, That upon the application of any person who may have settled and An act for the sale of the vacant lands within improved, or is desirous to settle and improve, this Commonwealth. Whereas the most valuable lands within this commonwealth, included within the purchase made from the native Indians in the year one thousand seven hundred and sixty-eight, have been taken up, located, and appropriated 2*] *for the use of divers purchasers, at prices heretofore established by law, and those which remain unsold and unsettled, being inferior in quality or situation, cannot be sold at the same prices: And whereas the prices fixed by law for other lands belonging to the commonwealth are found to be so high as to discourage actual settlers from purchasing and improving the same: a plantation within the limits aforesaid, to the secretary of the land office, which application shall contain a particular description of the lands applied for, there shall be granted to him a warrant for any quantity of land within the said limits, not exceeding four hundred acres, requiring the surveyor general to cause the same to be surveyed for the use of the grantee, his heirs and assigns for ever, and make return thereof to the surveyor general's office, within the term of six months next following, the grantee paying the purchase money, and all the usual fees of the land office. SEC. IV. And be it further enacted by the authority aforesaid, That the surveyor general shall, with the approbation of the governor, SECTION I. Be it therefore enacted by the sen- divide the lands thus offered for sale into propate and house of representatives of the common- er and convenient districts, in such manner as he wealth of Pennsylvania, in general assembly may think expedient, so that the boundaries of met, and it is hereby enacted by the authority of each district, either natural or artificial, may be the same, That from and after the passing of known, and appoint one deputy surveyor for this act, the price of all the vacant lands within each district, who shall give bond and security, the limits of the purchase made of the Indians as is customary with other deputy surveyors in in the year one thousand seven hundred and this commonwealth, and shall reside within, or sixty-eight, and all preceding purchases, except as near as possible, to his respective district; ing always such lands as have been previously and every such deputy surveyor shall, within settled upon or improved, shall be reduced to sixty days next after his appointment, certify to the sum of fifty shillings for every hundred the surveyor general, the county, township and acres; the price of vacant lands within the place, where such deputy surveyor shall keep limits of the purchase made of the Indians, in his office open, for the purpose of receiving warthe year one thousand seven hundred and eigh-rants, in order that all persons who may apply 1.-Present, Marshall, Ch. J., Cushing, Paterson, thereof; and every deputy surveyor, who shall for lands as aforesaid, may be duly informed Washington, and Johnson, Justices. receive any such warrant, shall make fair and clear entries thereof in a book, to be provided by him for that purpose, distinguishing therein the name of the person therein mentioned, the quantity of land, date thereof, and the day on which such deputy surveyor shall receive the same, which book shall be open at all seasonable hours to every applicant, who shall be entitled to copies of any entries therein, to be certified as such, and signed by the deputy surveyor, the party paying one-quarter of a dollar therefor. 4*] *SEC. V. And be it further enacted by the authority aforesaid, That the deputy surveyor shall, at the reasonable request and proper cost and charges of the respective grantees, in such warrants named, proceed to survey the lands in such warrants described, as nearly as may be, according to the respective priorities of their warrants; provided, that they shall not, by virtue of any warrant, survey any tract of land, that may have been actually settled and improved prior to the date of the entry of such warrant with the deputy surveyor of the district, except for the owner of such settlement and improvement; and having perfected such surveys, shall enter the same in a book, to be kept by the deputy surveyor, and to be called the survey book; and the same book shall remain in his office, liable to be inspected by any person whatsoever, who shall demand to see the same, upon the payment of eleven pence for every search; and the deputy surveyor shall cause copies of any such survey to be made out, | and delivered to any person, upon the payment of one-quarter of a dollar for each copy. SEC. VI. And be it further enacted by the authority aforesaid, That in making any survey by any deputy surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy surveyor without his proper district shall be void and of no effect; and the surveyor general and his deputies are hereby severally directed and enjoined to survey, or cause to be surveyed, the full amount of land contained and mentioned in any warrant, in one entire tract, if the same can be found, in such manner and form, as that such tract shall not contain in front on any navigable river or lake, more than one-half of the length or depth of such tract, and to conform the lines of every survey in such manner as to form the figure or plot thereof, as nearly as circumstances will admit, to an oblong, whose length shall not be greater than twice the breadth thereof; and in case any such survey should be found to contain a greater quantity of land, than is mentioned in the warrant on which it shall be made, so that such excess be not more than one-tenth of the number of acres mentioned in such warrant, besides the usual allowance for roads and highways, the return 5*] thereof shall, nevertheless, be admitted, under the warrant, provided the party procuring such return to be made, shall forthwith pay to the receiver general of the land office, the price or value of such excess or overplus land, at the same rate at which he paid for the land mentioned in the warrant. SEC. VII. And be it further enacted by the authority aforesaid, That every deputy surveyor to be appointed by virtue of this act, shall, within the month of February in the next year, make and return into the office of the surveyor general, plots of every survey which he shall have made in pursuance of any warrant, connected together in one general draft, so far as they may be contiguous to each other, with the courses and distances of each line, the quantity of land contained in each survey, and the name of the person for whom the same was surveyed; and every succeeding year he shall make a like return of the surveys made in the year preceding. SEC. VIII. And be it further enacted by the authority aforesaid, That the deputy surveyor of the proper district shall, upon the application of any person who has made an actual settlement and improvement on lands, lying north and west of the rivers Ohio and Alleghany, and Conewango creek, and, upon such person paying the legal fees, survey and mark out the lines of the tract of land to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement: Provided, That he shall not survey more than four hundred acres for such person, and shall, in making such survey, conform himself to all the other regulations by this act prescribed. SEC. IX. And be it further enacted by the authority aforesaid, That no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Alleghany, and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has, prior to the date of such warrant, made, or caused to be made, or shall, within the space of two years next after the date of the same, make, or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating, at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of man, and *residing, or caus- [*6 ing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so often as defaults shall be made, for the time and in the manner aforesaid, which new grants shall be under and subject to all and every the regulations contained in this act. Provided always, nevertheless, That if any such actual settler, or any grantee, in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued. SEC. X. And be it further enacted by the authority aforesaid, That the lands actually settled and improved according to the provisions of this act, to whosesoever possession they may descend or come, shall be and remain liable and chargeable for the payment of the consideration |