Davis v. Young 2 Dana 299, 32 Ky. 299

The Opinion of the Court in this case

Chief Justice Robertson and Judge Nicholas concurring, Judge Underwood dissenting

was delivered by the

Chief Justice,

as follows.

This is a'case of forcible entry and detainer, in which Davis, the plaintiff below, having failed, has appealed to this Gourt.

The land in contest was never enclosed, and is included by both the elder patent under which Young holds, and the junior grant under which Davis holds.

Each party had resided for many years, and still lives, within the bounds of the patent under which he claims, though the dwelling house of neither of them is, or ever was, on any part of the land common to both grants; but more than seven years prior to the first of January, 1816, Davis’ farm had, by a continuous-fence, been extended beyond the line of interference, and, as thus ex*300tended, has, ever since been occupied and cultivated by' himself and those from whom he derived his title ; and, sometime between 1812 and 1818, Young had also enclosed a part of' the interference between the two patents ; but had not enclosed any portion of the land now in controversy, until within two years prior to the institution of this proceeding against him.

Decision of the circuit court.

An actual residence upon the land} is indispensable to ensure to the occupant, the protection of the act of 1809, for the speedy adjnstmentofland claims — “ the 7 years law:” so decided, often apd invariably. But the precise meaning of the terms ‘ settlement’ — ‘settle,’ as used in .that act — what possessions the former term may include — hasne , ver been heretoforedetermincd by this court. [Judge Underwood thinks for mev decisions have defined Jhnedthemeaning of the terms. Dissent: post.]

Review of various cases, upon the seven years’ law, with reference to the question, whether tho act ap

Among various opinions given by the circuit judge, during the trial, which require no special notice, he decided that the seven years limitation law of 1809, enacted for the protection of actual settlers, could not be made to apply in this ease, beneficially to Davis; because his dwelling house was not within the boundary of the adversary patent, under which Young claims.

That opinion presents a point which has never beert settled, or directly decided, by this court. ‘When all the cases are collated and scrutinized, it will be seen, that, though this court has invariably decided that actual residence is indispensable to the .protection assured by the limitation law of 1809, and that an actual settlement, within the contemplation of that statute, should not, as a matter of course, be extended, by construction, to the limits of the occupant’s claim or title — it has never yet conclusively -defined, in any other respect, the settlement intended by the statute; nor determined whether the dwelling house must be on the disputed land; or whether the occupant should be deemed to be settled on the land claimed by his adversary, whenever his dwelling house, though not included within the conflicting claim, is embraced by his own claim, which elsewhere conflicts, and his farm, or other improvements subservient or appertinent to the mansion, and actually used and occupied by him under the same title, shall have been, as long as seven years, according to the statute, on the land claimed by another, under an adverse title.

In Anderson vs. Turner, 3 Marshall, 131, this court said, respecting Anderson, wlio was defendant in the circuit court, — “He is, it is true, proven to be possessed of the land in contest; but he is not shewn to have actually settled upon the land included within the claim of *301Turner.” It is believed that the facts presented in that case, in the circuit court, were, in every essential particular, like those which the record of this case exhibits in this court. But it will be found, by an inspection of the record of that case, in thfe office of our clerk, that it does not shew, that Anderson’s enclosure had been extended, for seven years, within the boundary of Turner’s claim ; or that, if that important fact could be inferred at all, it was not presented in sue!) a manner as to have authorized this court to take judicial cognizance of it. The bill of exceptions states, that Anderson had purchased from McKee, the grantee of the title which conflicted with Turner’s claim, and that he had actually resided, for more than thirty years, within the boundary of his own claim, but not within the claim oj Turner; and also, that be had been “actually possessed of the land in contest,” for- about eleven years. The plat returned by the surveyor exhibits some zigzag marks across the line of interference between the conflicting claims, and “ Anderson's field" is written within those marks. But neither the surveyor, in his report, -nor any witness on the trial, explained whether those marks designated a part of Anderson’s farm on which he resided; nor does the bill of exceptions contain a particle of evidence as to the time when the field had been cleared or enclosed, or how long, or by whom, it had been occupied. This court could not, therefore, have judicially decided, from such facts, that any part of the land claimed by Turner within Anderson’s patent liad been enclosed and continually occupied by Anderson, as a part of his residence, for as long a period as seven years prior to the institution of the suit; or even that the field had been actually enclosed before the commencement of the suit. And hence the field is not alluded to in the opinion delivered by the court; and therefore, when the court said that, though Andej’son had been in the possession of the land in contest, still there was no proof that he had ever been actually settled on it, we should presume that the idea intended to be conveyed by the word 11 possession" was, that there was only a constructive possession, in fact. In many other *302cases decided by this court, on the same statute, whenever the word “possessed” is used, as contra-distinguished from “settled,” a constructive possession, merely was evidently intended. Nothing else was intended in the case of Anderson vs. Turner : first, because tiie bill of exceptions in that case, did not, as already shewn, prove that there had been a possesdo pedis {or seven years ; nor that there had-been, for that period, or even for any period prior to Turner’s suit, any other than a constructive possession in fact; and, second, because, had the court known- that Anderson liad held the land in contest, by actual enclosure, connected with bis mansion by a continuous fence, or occupied in subservience to it, for a period of more than sevens years, we are not allowed to presume or admit, that such a fact would have been passed by without any notice or suggestion whatever, or that the court would have been willing to say, that Anderson liad been possessed, but not settled, without shewing how he had been possessed, and why he was not deemed to have been settled.

*301plies when the* dioellinghouse of the settler is not upon the part of the land adversely claim ed — none of which cases,(as the majority an-, derstand them) contain any decision, or intimation, that the act is to be so restricted in its operation.

Anderson vs. Turner, 3 Mar 13 , first examined.

*302It is well known, that a claimant may be possessed of land, without being actually settled on it; and that an occupant may be in actual possession to the extent of his claim, although his actual enclosure is more circumscribed ; and this obvious distinction icas deenied so essential by the legislature, as to be made the basis of the important statute of limitations, of 1809.

It would have been quite easy and appropriate for the court to have said, in Anderson vs. Turner, or in some other of the very many cases which presented tiie point, that an occupant cannot be settled on his adversary’s claim, unless his dwelling house be upon it, if such had been the opinion of the court. And such a decision— summary and precise and plain as it would have been, would also have been recommended by the fact, that it would have prevented much doubt and perplexity, known to have existed, as to what the word- “settled” was designed to mean and comprehend. And, therefore, it is to be presumed, that this court would, in some case, and especially in that of Anderson vs. Tur*303ner, have said, at once, that the occupant’s dwelling house must he within the limits of his adversary’s claim, if .such had been deemed to be the true exposition of the act of 1809.

Miller v. Humphreys, 2 Mar. 446, and—

Hite’s Heirs v. Shrader, 3 Litt, 445, examined

The boundaries of a settler’s claim, and of his actual settlement, may be different. — ,. —But, a's fab *304as permanent ‘improvements have been made and used by a bona fide set-.tier,.in connec•tion with, and .subservient to his residence, and within the limits of a claim under which he settled — so far his ‘settlement’ extends ; and if such improvements extend into an adversary claim, he must be deemed a setller thereon;and, by addling to his improvements, he may enlarge his settlementiand, when he thus encroaches upon an adversa-' ry claim, within the limits of ’his own, he will "be deemed a ‘settler’ upon the interference from the time ofthe encroachment — when the statute begins to run, and, after 7 years, affords its protection. [Judge 'TJ. thinks the first entry ofthe settler, with title,or his acquisition of title after entry, are •the only points, at which the •computation of time can cominence. — Dissent — r,post. 3

*303Bm. in the case of Miller vs. Humphreys, 2 Marsh. 448, t.he court incidentally said, in effect, that an extension of the enclosure is pn extension of the settlement, and that the settler is actually settled to the extent of his actual close.

And, in Hite’s heirs vs. Shrader, 3 Litt. 445, the court said : — “ The defendant proves, that he has had possession for about ten years before the commencement of this suit; but it appears, that he settled outside of the interference between the two claims, and that no part of his enclosure is within the bounds of the land claimed by the compiainánts ; and, according-to the settled construction of the act for the speedy adjustment of land claims, which prescribes the limitation of seven years, for bringing suits for the recovery of land under adverse claims, it only applies to cases where suit is brought for "land on which the adverse claimant has been settled for seven years.” Thus clearly intimating, that an occupant should be deemed to be settled to the extent of his actual- enclosure, at least -, for, unless such had been the opinion of the court, the declaration that 'lno part of {the).enclosure is within the bounds of the land claimed by the'complainants,” was not only useless and unmeaning, but inappropriate and delusive.

But whatever should be inferred from the tenor of the cases of Anderson vs. Turner, of Miller vs. Humphreys, and of Hite’s heirs vs. Shrader, the point we are now considering was not judicially decided in either of them ; and, as there is no other adjudged case in which that point can be deemed to have been settled, or directly touched, we are left, without any other guide than the statute itself, to settle definitively and authoritatively, for the first time, its true import and application.

Considering the statute of 1809, so far only as it has not been hitherto authoritatively expounded, and conceding — as has been often decided — that the boundary of the occupant’s claim is not, merely because it defines the extent of his claim, the boundary, also, of his actn*304al settlement on the land so claimed, we are of the opinión, that he should be deemed to be settled to the extent of the permanent improvements made and used by him, in subservience to his residence, and within the limits of the claim under which he settled and lives. All such improvements should be considered, as the occupant considered them, to be integral parts of his settlement or residence ; because each is but an1 incident to, of a consequence of, his habitation, and ministers to his necessities and comforts as an actual occupant, and is equally embraced in the common sense, popular idea of his settlement, or residence, or home., Moreover, we cannot believe, that a provident legislature, in enacting a law for securing peace, safety, and repose to those who improve and occupy land within the limits of this Commonwealth, believing that they are settled upon and are improving their own soil, ever intended that the-dwelling house only, should be protected, and that the kitchen, the smoke house, the dairy, the barn, the com field, or even the enclosed woodland pasture, should be unprotected, merely because they may happen to be on one side of a line of a conflicting superior claim, and the mansion house happens to be on the other side of the same line, though all of them are within the boundary of the claim under which the occupant settled, and within which, believing it to be secure, he has, in good faith, been extending his farm and other improvements, in the hope of having a permanent and comfortable home, where be might live independently, and enjoy the fruits of his honest toils; but where he could not, and would not, live, if nothing be left to him but the isolated walls of his dwelling house. Such a restricted interpretation of the statute of 1809, would, in our judgment, be not only subversive of the end and policy of its enactment, but irreconcilable with the popular and practical import of its phraseology, and even incompatible with the most technical meaning of the terms — “ settled” or settlement — reside or residence Why should the dwelling house be alone protected? and why should every other improvement subservient to the'dwelling and essential to its enjoyment as the *305‘©ecupant’s home or place of residence,,be without the pale of the protecting statute ? Why should the legislature have been so solicitous to protect the cabin or other house in which the occupant eats, and have left unprotected, the field which his labor cleared and enclosed, and xohich yields his children bread, and to enjoy which lee settled himself and built him a shelter ? The idea of home, or of settlement, is more comprehensive and enlarged than the mere walls of the house, or the camp, or the tent, in which the occupant eats and- sleeps. According to the most circumscribed import, which it can be reasonably or consistently deemed to have, it is coextensive with the enclosed farm, and is an aggregation of every improvement embraced by the actual close, and subservient to the occupant’s comfortable residence. To that extent, at least, he is actually settled ; and he should be deemed to be settled equally on every part of the enclosed area, which includes his dwelling house, and which, with all its improvements, is an entirety, properly denominated his settlement, residence, or home. As the circumference of that consecrated area is extended, the settlement is enlarged; and whenever it includes any portion of land claimed under a title adverse to that of the occupant, he should be deemed to be, eo instanti, settled within the bounds of the adversary’s claim.

The same person can have but one actual settlement, at one and the same time ; but that settlement may be more extended or circumscribed at one time than at another time, and may interfere with more than one adversary claimant at the same time, or at different times, without any removal of the occupant’s dwélling house. ‘This may all be true, even if his settlement be restricted to the walls of his dwelling. For instance, if, when he first settled, his house was so small, as to encroach on the boundary of only one adversary claimant, and should, therefore, on the hypothesis, that that house alone defines the extent of his settlement, be deemed to be settled on one ohly of the conflicting claims ; still, by building another house on the site of the first and of dimensions so much larger as to encroach on other adjoining and con-*306Aiding claims, lie would Chen be settled within the bounds of each and all of the claims on which'his house is built. And the same may be as truly said of his en tire close, if that, and not the wails of his dwelling house, should be deemed the boundary of his settlement. But in each case, there would be only one settlement, though it was of greater or less extent at different times, ás the close defining it, was, at one time, or another, more or less circumscribed ; just, as the occupant himself, though hemever lost his personal identity, was Iárger or smaller, and filled more or less space, at different periods of his life.

To constitute an actual settlementuponland, to which there tei&ring dalnT the dwelling tierSor sometíthe improve-ed with itjtnust be upon the the adversary claimanthas no and his right wfii not bo *307affected. But whenever the settler encroach, es uponthelap, it operates as notice tohisadversy ;who may-then bring his suit; and if ho fails to do so, for seven years, lie will be barred.

*306Security and encouragement to honest industry, and a consequent incitement to the settlement and improvement of the country, were the'leading objects of the statute of 1809 ; and not only those ends, but the words of the act, should, in our opinion, be deemed to imply, as a matter of course, that the bona fide occupant should be secured, at least to the extent of his improvements connected with and subservient to his residence. To that extent, he is actually settled on the land on which he resides, and which he claims as his own, and therefore .improved. If he is settled in his house, why is he not also settled on his enclosed farm, on which he built’his house, and lives, for the purpose of enjoying the fruits of his agricultural labor ? and would he not be settled on the whole farm, even though he lived on it without any house?

Actual settlement is a comprehensive term — a nomen p-eneralissimum, which includes more than a dwelling house. Generally, it should, m the abstract and popular sense, deemed coextensive with the claim of title, under which the occupant settles on a part, in the name of the wh°Ie t>'act which he claims as his own ; and then the entire tract is an indivisible unit, and altogether identisettlement.

But so comprehensive an import could not, justly or consistently, he allowed to the term “ actually settled,” }n tfog statute of 1809, unless the occupant should have built his dwelling house, or extended his actual close, or m-j^g other appertinent improvements, within the *307limits of the adversary claim, conflicting with that under which he settled.

It was, doubtless, the intention of the legislature, only to substitute, in behalf of actual bona fide settlers, a limitation of seven years, for the general limitation o.f twenty years. And hence, as an adversary claimant of a tract of land, partially interfering with, a tract settled on by another claimant, might have no cause of action against the occupant, until, by actual enclosure, or other improvement, he had encroached on some portion of the land embraced within the conflicting boundary, it would not be just or consistent with the purpose of substituting seven for twenty years, to give to the term settlement, or u settled,” such an import as to make seven years a bar to an entry, when no cause of action had ever occurred. But it would be perfectly just and consistent* with the policy of the act of 1809, to give it such an-operation, as to protect, a bona fide settler, to the whole extent of his recorded claim, whenever he had extended the actual close including his dwelling, or made other appertinent and permanent improvements, upon the interfering claim, so as to furnish to the adversary claimant sufficient and continued cause of action, for seven years prior to the institution of his suit; and when the adversary claimant had not, also, been, at any time during the seven years, actually possessed of the interference. And this interpretation of the statute, which appears to us to be reasonable and consistent, is fortified by the intimation already quoted, from the case of Hite’s heirs vs. Shrader, (supra.)

There is, as already suggested, an obvious reason for restricting the ordinary and natural import of the term actual settlement, or “ actually settled,” and for giving to it, in cases within the operation of the statute of 1809, an artificial and legal signification more limited in its range. But beyond that reason, we can perceive no sufficient or consistent motive for carrying the restriction ; especially, as any other or greater qualification might operate unjustly and inconsistently, and might often pervert the statute, and frustrate its obvious and admitted policy.

*308Review of cases supposed to conflict with the construction given in this opinion, to the 7 «g-wslaw; vizr

Bodley v. Coghill’s heirs. 8 Mar. 615—

Hog v. Perry, 1 Litt. 173—

Such a statute should be reasonably construed, ani| beneficently applied in favor of bona fide settlers and improvers; and such a construction and application will not,-as we believe, withdraw its protection liom the fields, and the garden, and the barn, and the meat house, of the occupant, and, by confining its panoply to the solitary dwelling house, leave it cheerless and destitute, and thus convert it into a prison, rather than the abode of comfort and security.

It is said, that the cases of Bodley vs. Coghill's heirs, &c. 3 Mar. 615; Hog vs. Perry, 1 Litt. Rep. 173; Smith vs. Nowells, 2 Litt Rep. 160, and May &c. vs. Jones &c. 4 Litt. Rep. 24, conflict with the interpretation which we give to the statute of 1809. Wfe think otherwise; and will briefly notice those cases, for the purpose of shewing why we so think.

In the case of Bodley vs. Coghill’s heirs, there was no proof, that the party claiming the benefit of the statute of 1809, had ever lived upon or near the land of the other party, or even within the bounds of his own conflicting claim; the only proof on that point, was, that he “had entered upon the interference in 1795,” and had-“held the possession thereof ever since and thereupon, this court decided, that there was no proof of any actual settlement on the land ; and said, very truly, that, “the possession may have been acquired and continued» by clearing and enclosing, or by other mode of entry upon land, without an actual settlement.” Here the court evidently decided, only, that there being no proof of an actual residence within the limits of either of the conflicting claims, a naked possession, even by enclosure, could not, per se, amount to an actual settlement. But there is no intimation that, if there had been an actual residence within the bounds of the settler’s claim, the occupant, by an extension of the actual close including that settlement, should not have been deemed to be settled” to the extent of his' entire enclosure.

In Hog vs. Perry the court said : — “There is proof of clearing or improving and cultivating the soil; but no actual settlement or residence is shewn during the whole seven years next preceding the commencement of this ac* *309lion. On the contrary, this cultivation of the soil, or use of the land, was interrupted for several years, part of the seven, and nobody used the land, except that the appellees kept up a continual claim there.” Surely there is not a word in that case relating, in the remotest degree, to the point we are considering.

Smith v. Nowells, 2 Littell, 160-

In Smith vs. Nowells, it appeared, that there had been no settlement on the land in contest, by the party claiming the protection of the statute of 1809 ; but a tenant of that party had been permitted to clear and enclose a field within the interference of the conflicting claims, which, after being occupied for less than seven years, by the tenant, had been abandoned, and deprived of its enclosure. The court then said: — “It also appeared that the defendants had, for some years, lived, and still live, within the boundaries of the patent under which they claim, but outside of the interference with that of the lessor of the plaintiff, and that the improvements, where they settled, were not upon the interference.” And, in that state of case, the court decided that the circuit court erred in instructing the jury to find for the defendants, if they liad “ either settled upon or taken possession of the land” claimed by the' plaintiff, and had con-tinned so possessed for seven years ; and assigned, for that obviously correct decision, the following reason :— “ The jury, according to the instruction given by the court, would have been bound to find for the defendants, although they might have obtained the possession by entry upon the land, or enclosing it, without any actual settlement upon it:” meaning only, by the latter part of the sentence, that the clearing and enclosing of the field by the tenant, unconnected as it was, with the residence of the landlord, was not an actual settlement by the latter; and that, by merely thus acquiring possession, he could not be deemed to have been actually settled on the land in contest. Thus it is perfectly evident, that there is nothing in that opinion repugnant to our interpretation of the statute. But, on the contrary, there is an indirect .implication in support of it. For the court said that, “ the improvements, where they settled, were not upon the interference *310thereby intimating, that the improvements ¡md the settlement with which they were connected, were commensurable.

May's heirs v. Jones &c. 4 Litt. 124 — and Conclusion that the cases of Hite’s heirs v. Shrdder, Miller v. Humphreys, and Smith v. Nowells, favor the construction now given to the "act, while there is no case containing even an. intimation,conflicting with it. [Judge U. takes a different view of the cases.— Dissent: past.] Where different settlers,under in terfering claims to the same land, have improvements, united with their residences, upon the lap, and the possession of neither has been interrupted by the other, within 7 years —the extent of the possession of each will depend on his title and other facts to be proved.

Erroneous instructions are cause for reversal, notwithstanding thever diet may be such as it ought to have been, *311expositLn°ofthe law.

*310In May &c. vs. Jones &c., there was proof tending to shew, that the actual residence had not been continued for seven years, although the possession acquired bj the settlement had never been interrupted ; and the court therefore’ said, “there may have been a continued possession of the land for seven years, without an actual residence thereon, during that time.”

Thus we have not been ' able to find any adjudged case, which contains even an intimation against our construction of the statute ; and, it is evident that the cases of Hite's heirs vs. Shrader and Miller vs. Humphreys, fortified by that of Smith vs. Nowells, favor that interpretation.

Then, considering the, phraseology, reason, arul object of the statute, and all the adjudged cases, its true interpretation must, we thin.k, protect against an antagonist claim, an occupant of the designated class, who shall have made and continued for seven years, within the bounds of the interference between the conflicting claims, any permanent improvement connected with his residence on his own iiiterfering claim and subservient to its comfortable enjoyment as his ‘home : — unless the adversary claimant shall, within that period, have been also settled on the interference, claiming it as his own land ; or shall have done something else to interrupt or change the possession ; and then the character and extent of each occupant’s possession would be determined by the titles and other facts proved on the trial.

Wherefore, it appears that the circuit judge erred, so far as the opinion which he gave to the jury differed from tfie exposition of the statute of 1800, which we have now just given.

But the counsel for the appellee has argued, that the judgment should be affirmed, because, as he insisted, the proof entitled his client to a verdict, even had the circuit court given to the jury, the correct, instead of an incorrect, exposition of the statute.

What, according to a proper construction of the law *311and the facts, the verdict ought to have been, we shall not now enquire; because any opinion we might express on that point, would be altogether extra-judicial; for this court cannot know how the jury would have found, had there been no erroneous instruction ; nor can wc know, that the error in the opinion of the circuit judge did not operate to the prejudice of the appellant.

DISSENT,

Themeaniiwof the terms ‘set-tier* • ~ ^ ssttls-” ment,’ as used intheKentucky statutes generally, discussed.

Whether, by entering on the land in contest, the appellee interrupted the continuity of the appellant’s possession, prior to 18115; or whether the appellee had extended his enclosure, as he attempted to prove, across the line of interference, prior to 1816; or whether, in 1812 or 13, when a conveyance was made to him by Chin, it was understood between the appellant and himself, that he should hold the land so conveyed, and that the appellant’s possession.should not longer be construed to extend beyond his actual enclosure, and which may be proved by parol .testimony, or inferred from parol facts, without violating the statute of frauds and perjuries — are all questions which the jury had a right to decide from the evidence; and respecting''which, as there will be another trial, this court will intimate no opinion.

Judgment reversed, and cause remanded for a new trial

Judge Underwood dissenting.

Judge Underwood,

unable to concur with the other members of the Court, in the foregoing Opinion and Decision, presented his views upon the points of difference, in the following Dissent.

Unable to concur with my brethren in the opinion delivered, I deem it necessary to give my views as to the true meaning of the act of 1809, entitled “an act to compel the speedy adjustment of land claims,” so far as it applies to the present case.

The first and second sections of the act are the only two which need be considered; and the first remark * which I deem it important to make, is this; that the first section was intended to protect settlers “before the passage oí the act,” and the second section was intended *312¡-0 protect those who might thereafter settle op land-’* There is some difference in the language used in the sections, and they might be differently interpreted were it not, that the general scope and policy of. the act forbids the idea that the legislature contemplated taking the distinction between a previous and after settler, in such manner as to put the latter upon a more favorable footing'than the former. If there be a difference in the construction of the two sections, the after settler would meet with a more liber al protection than the previous settler. Such a difference would be altogether unreasonable: because, if any preference was given, it would, under the legislative motive disclosed in the preamble, most likely fall to that class whose labors had earliest contributed to redeem the country from its wilderness condition, and who, at the time of their settling, had fewer means of ascertaining the position of the various interfering claims, which covered their land, or parts of it. I shall, therefore, regard both sections as meaning to afford protection, upon the same terms, to the previous and after settler.

• The nature and extent of the protection, which the statute intended, will, I think, be very plain, if we attend to its language, and give proper effect to the terms hitler and settlement, which, in our land law, have a technical meaning..

The Virginia and Kentucky statutes, passed . for the purpose of appropriating the vacant, public domain, regarded the country as a vast wilderness. The design of the legislature, in granting lands to settlers, or in granting settlement rights, was to have the country improved, and filled with a thriving, happy population. The settler, by legislation, was to have a settlement right granted to him. Who was the settler? I answer, the man who penetrated the wilderness.in pursuit of a future residence, and having found a place suited to his wishes or necessity, there stopped, ceased his rambles, and began to improve, with a view to a permanent home. He was a settler from the time he built his half-faced camp, or erected his tent, provided he did it with the intern-.felon of remaining and living at that spot. Thus local* *313ing himself upon land, and continuing to reside thereon the time required, he might obtain from the proper authorities, the grant o! a settlement right: to wit. a certificate allowing him to appropriate so much land, including the place where he settled, meaning where be stopped, and where he put up the first rude camp or cabin, to shelter himself from the weather, and where he resided the requisite length of time. If, as suggested Jn argument, he located himself in a hollow tree, and commenced improving, with a view to a permanent residence, the tree would answer all the purposes of a camp or a cabin, to designate the spot where he settled. The term settlement is sometimes, in common parlance, used to designate the settlement right, or number of acres granted to the settler, in consideration of his settling* and remaining the requisite time, upon the land. And in that sense, it may sometimes be used in legislative and judicial proceedings. Thus A B’s settlement, or preemption, means the four hundred, or the thousand acres, granted to him. But the term settlement, as used in the first and second sections of the act under consideration, means nothing more nor less, than the locating onesself upon the land, with a view to make a permanent residence, and manifesting that intention, by preparing the hollow tree for shelter,- or by erecting' the camp or cabin, and living in it. < This will be manifest by. considering another matter: to wit, the different circumstances which ¡.oust exist, or the ingredients essential, to constitute the protection of the settler, under the provisions of the statute.

Requisites of the seven years’ law, to enable a settler to avall himself of its protection.

First: the settler must have a connected title, in law or equity, deducíale of record from the commonwealth. Secondly: he must be an actual settler upon the land embraced by his legal or equitable title. Thirdly: such actual settlement or residence upon the land, must he continued for the term of seven years, during which time the title, legal or equitable, must abide in him — unless he is aided by the relation subsisting between v'endor and vendee. The concurrence of these things constitute the shield which the statute has *314furnished. From what timo shall it avail ? or from what time shall the limitatiqn begin to run? There are two answers for the question: first, from the date or. commencement of the actual settlement, where the settler has title whén he enters on the land. But if he have no title, then, secondly, from the time he acquires 1 title including lus actual settlement. 4 he first answer, ^ whic.h is founded on the first section of the act shews clearly, that the limitation runs from the dial the settler located himself. The second answer, foundéd on the second section, shews that the limitat-ion runs from the acquisition of title. There is neither section, any expression which holds, out idea, that the limitation can.begin to run from finy other period, for any part'of the land claimed by the set-tier; and yet, under the opinion delivered, there is a limitation of seven years, commencing — not at the time, the actual settler first establishes himself apon ^ie ^anc^ un^er lide, nor at the time he acquires title, if he settles before he has any — but, from the time he extends his improvement, his enclosures, over the line of the adversary entry, survey .or patent. To my mind, such a construction is equivalent to an interpolation providing for a third class, of cases no where mentioned in the statute. The error results from confounding the term settlement with improvement, and regarding the enlargement of a man’s fields around his dwelling place, as the enlargement of his actual settlement, or the making of a new settlement, within the protection contemplated by the statute:

The statute begins to run from tier entered on the land when he entered with title, and from the time when ne acquired tiie tit)e, if he had ?ered°Uwkhout one. The ex-wards”’of^the improvements his dwelling house, mto the limits of an adversary claim, will not make upon it, within the acTnÍ[The othevtwojudges 30S*ja~^nte

* I can find no pretext in the statute, for considering the place of the first actual settlement a focal point, from which the old or new settlements may radiate to all points of the compass, and invade A’s patent, on the worth, B’s, on-the south, C’s and D’s, on the east and west, so as to divest each of them of their right of entry, after the lapse of seven years adverse possession, when the settler’s actual location, in the beginning, was not within the bounds of either of their claims, and when the settler has continued to reside or dwell an the outside of their lines. The construction by which a *315man is made an actual settler on four, or forty, different and distant patents, when the dwelling houses, covering the spot where his first camp or cabin was erected, and in which he has all-along continued to reside, are upon neither, is an interpretation of the statute (to quote the language of the opinion) “subversive of the end and policy of its enactment, and irreconcilable with the popular and practical import of its phraseology.” The object of the statute was, to secure the home — the dwelling, of the settler and his family, and to prevent his being “cast out naked to the world.” . This object .is dearly expressed in the preamble. It was never intended to enable the settler, by the extension of his fences, and trespassing upon the land of others, to divest them of their right of entry, upon seven, instead of twenty years, adverse possession, unaccompanied by actual residence upon the land.

it seems to me, that this question will be placed beyond the possibility of a doubt, by an attentive consideration of the language of the first section of the act. That section declares in substance that, “no action at law, bill in equity, or other process,' shall be commenced by any person claiming land under an adverse interfering entry, survey or patent, whereby to recover the possession from any person actually settled thereon, &c.” Now, unless the actual settler is settled upon the adverse claim about to be asserted, there is no prohibition to the institution of suit. Let it be borne in mind, that the actual settlement means place of residence, according to various judicial interpretations and decisions, and then, I ask, how is it possible, under this stat-, ute, to prevent the adverse claimant, having the better-title, from asserting it successfully, if the occupant does-not reside within its bonds? That actual settlement, and residence, are the same thing, is p^afed by the considerationj that if they were not, then possession by improvements alone, without residence, continued'for seven years, would afford protection under the statute. No case can he found where the protection has been given without actual residence upon the land sued for; and it will be seen in'the sequel, that such residence *316is indispensable to toll the right of entry, under the act of 1809. The opinion delivered concedes, that actual settlement is essential, but makes it out by an extension of the improvement across the line ; now if actual settlement and residence be the same thing, and it be indispensable to reside on the land which is sued for; in order to defeat the claimant, can it be possible, by extending the improvement over the line, to extend the actual residence over the line? A man, by extending his improvements in every direction around his dwelling, may invade various tracts patented to others, but because he does that, can it be said with propriety, that he resides upon, or is actually settled on, the land of each patent? The thing is impossible. There is no way to avoid the force of the argument, except by shewing, that actual settlement is one thing, and actual residence another, within the meaning of the statute y or by going still further on the idea of extending improvements, and making a man’s actual residence coextensive with the limits of his enclosures around the domicil; and thus confer upon him the character of an actual settler, or resident, upon the adverse patents, merely because he has enclosed parts of them Such a construction, I confess, ' violates all my ideas >of the meaning of the terms actual settler. A has a patent for a thousánd acres, and the question is, whether B is actually settled upon it. It is proved, that, when B first came to the country, he camped half a mile from A’s nighest line, built his cabin where he camped, and afterwards erected.a splendid mansion upon the site of the cabin, and has lived and resided in this camp, cabin and mansion, from the time he stopped travelling; yet, under the opinion, if he extends his enclosures connected with the dwelling house, over A’s line, he instantly beconj^ an actual settler, or resident, upon the land of A, and, if not sued within seven years, it divests A of his right of entry. Is not this conferring on B a sort of legal ubiquity? It makes him an actual settler, or resident, at two distinct places, and upon t.wo distinct patents at one and the same time..

*317The main argument, in support of tiie doctrines of the opinion, rests upon the supposition, that the legislature did not intend to protect the domicil alone — which would bo useless, if all the adjacent fields,' orchards and pastures were recovered by an adverse claimant. I cannot perceive the basis of the supposition. We know that, in practice, the statute has been the means of protecting hundreds and thousands of occupants, and securing to them, not only their domicils, but large portions of land likewise. The legislature did not look to extreme cases; the general condition of the country was surveyed by the legislative eye, and then legislative wisdom prescribed a rule suited to the general condition. The rule was, if the claimant of the paramount title permitted any one to settle within the bounds of his entry, survey, or patent, and remain so settled for seven years, the owner of the superior title should not, thereafter, recover, provided the settler had a claim, or title, deducible from the records of the commonwealth. The paramount title holder may well complain of surprise, if his land is taken from him, not in virtue of an actual settlement in fact upon his claim, but in consequence of a constructive, actual settlement, growing out of the extension of fences. If the actual settler happens to locate himself and his houses on a few acres covered by no other claim than his own, and all the rest of his claim is covered by superior adverse titles, so that he loses all the land, except the few acres on which the houses stand, I admit that he might find much difficulty in supporting himself and family upon the premises left. But the legislature have not prescribed the rule in reference to such an extreme case. The rule has been made to turn upon the fact, whether the actual settlement, the place of original location, is upon the adverse interfering claim, or oil’ of it. The present is not an extreme case ; and I do not look upon it as proper to strain the obvious construction of a statute, to make it embrace a supposed possible case of hardship.

It is suggested, that it would be very hard on the qccupant, to permit the adverse claimant to recover the *318kitchen, smoke house &c. provided his iiue run between them and the dwelling house. I do not feel myself at liberty to depart from a plain statutory rule, to save hard cases. There is a difference, however, between houses appertinent' to the mansion, and a distant enclosure ; and were it conceded, that the smoke house and kitchen constituted a part of the actual settlement, it would by no means follow that a distant corn field was a portion of the actual settlement, or residence, within the meaning of the statute. A case may be supposed, whore the line of the paramount adverse claim 'might run between the bed and fire place : and, in such case, it might be asked, is'not the occupant, actually settled on both sides the line? I concede it.' for an actual settler cannot be ’ restricted to a mere ideal point. His settlement, or what is the same, his residence, must have length and breadth ; but because it must of necessity cover more space than the ground he stands ujion, 1 cannot find in that circumstance, sufficient reason to extend it, by construction, to the limits of his enclosures. ’ '

Examination of the record and opinion m Anderson v. Tur(aa’^ud^U1 uijderstandsit,) tiñí majority is inconflict. Anie ° '*

The foregoing view of the subject grows out of my understanding of the legislation of the country, and of ° J . the meaning of the terms actual settler and settlement, m ”vai'i°us statutes for appropriating-vacant land, beginning as far back as the Virginia act of 1779. But I reSarc^ the question now made, as having been determined by this court, in the case of Anderson vs. Turner, 3 Marsh. 131. That suit was instituted a few years only, after the act of 1809 took effect, and was decided in 1820, Fall Term. I have examined the original record, andT find that — “It was admited, that the defendant liad purchased of McKee, and that McKee’s patente issued in 1794, cbvéred the land in controversy ; and under that title, defendant has been actually possessed of the land in controversy ever since before the first day of January, 1808;.and it was also proven, that he had been living on part of the said land, but not the part in controversy, upwards of thirty years.” I copy from the bill of exceptions. The plaintiff gave in evidence, tlie surveyor’s report and connected plat, which show-*319®d how the patents, under which the parties severally claimed, interfered. The position of Anderson’s house and spring are laid down, and then there are zigzag parallel lines, or marks with a pen, extending from towards Anderson’s house and spring, into the patent bounds of Turner’s claim, and closed in Turner’s claim, by running the same kind of line or mark from the end of one of the lines running into his patent, to the end of the other. Within the space included by these zigzag lines, and the western line of Turner’s patent, the survey- or, has written “pt. Anderson’s field.” These, are the facts; and upon them, the court says: — “He (Anderson) is, it is true, proven to be possessed of the land in contest; but he is not shewn to have actually settled upon the land included within the claim of Turner, and it is only in cases of such a settlement, that the act can have any operation ” We perceive from the-facts, that Anderson had actual possession, inside of Turner’s lines, from January, ISOS ; the suit was commenced in 1S1'9 ; so that his possession was of eleven years duration, inside the lines of the patent, under which Turner claimed. Now, if the jury could reasonably have inferred from the evidence, that Anderson’s possession was the result of an actual enclosure, and that such enclosure was an extension of the fences from the curtilage around the dwelling house, then, under the doctrines of the opinion delivered, Anderson was shewn to have been actually settled upon the land in contest. It seems to me, that-it is impossible from the facts, to doubt the correctness of such conclusion, and that the jury were warranted in making it. The surveyor noted part of Anderson’s field inside Turner’s claim; and if it was only a part, tiie residue was across Turner’s line, towards Anderson’s house, and so shown to be situated by the zigzag lines, representing the fences.' That the improvement was continuous, from the dwelling house, over upon Turner’s patent boundary, is the rational de-. duction from the fact, that the parallel lines are not closed from their ends next the dwelling house — having been left open, no doubt to show, that the fields extended in that direction so far as would include the spring and *320dwelling. It would be preposterous to suppose, that the field noted on the plat by the surveyor, and of which Anderson was proved to have been possessed for eleven years, was not enclosed by fences. If it had been-an unenclosed waste, Turner might have entered upon it, without suit. With such facts before them, furnishing the foundation for such deductions, the former judges of this court decided, that the act of 1809 did not protect Anderson, becausé he was not actually settled upon the land claimed by Turner. If the extension of the improvement from the dwelling, where .Anderson had been living .thirty years, over the line of Turner, was the extension of Anderson’s actual settlement, he ought to have been protected, and the court were wrong, if the opinion now delivered is right. But the court determined, that Anderson was not an actual settler upon Turner’s claim, for it was shown, that he had lived for thirty years out side of Turner’s lines, and therefore, he could not be an actual settler within his lines.

«TeS View of the cases of — Bodley v. Coghill’s hs. 3 Mar. 615—

To my mind, the opinion delivered conflicts with the decision in the case of Anderson vs. Turner, but even if they could be reconciled, by a criticism on the manner in which the facts are presented by the bill of exceptions, there are other cases with which the opinion delivered cannot be reconciled. I shall refer to some of the first cases, to prove, that actual settlement, and residence, are the same thing, within the meaning of the act of 1809, and also, to prove, that the possession which protects a defendant, under the statute, must be gained by actual settlement or residence within the lap, and not by improvement of any other description.

' In the case of Bodley vs. Coghill’s heirs, 3 Marsh. 615, the court says, “that statute (to wit — the act of 1809,) only operates as a bar to an action brought to recover the possession of land on which another has been actually settled for the time prescribed by the statute. But the agreed case does not state, that there was such an actual settlement, and.the possession of the defendant may have been acquired and continued by clearing and enclosing, or by other mode of entry upon the laud, without an actual settlement.”

*321Hog v. Perry, 1 Litt. 73—

Smith v. Nowell’s, 2 Littell, 160—

MayJg he¡rs Jones $c. 4 TOnoiusi^tljiit these cases and ¿ate¡ provetliat tin; settlement 3nd I'Ps^d&YitCC 0f a defendant must be on that part of his land with which an ylve'/.Ka|y a-,alm thorize him to ag^nUyea"s ]a‘® for his protec™ses »' conflict with the opinion of the court, in this case-

In the case of Hog vs. Perry, 1 Litt. Rep. 173, the court say, “possession alone, without residence, or without settlement and occupancy, cannot sustain the bar.” “There is proof of clearing, or improving and eultivating the soil, but no actual settlement or residence is shown &c.”

In the case of Smith vs. Nowells, 2 Litt. Rep. 160, the eourt sav, “the act of 1809, to compel the speedy adjustment of land claims, - which limits the time to recover land to seven years, has been construed to apply, only to those cases in which the possession has been acquired and continued by an actual settlement upon the land, and-not to those in which the possession has been obtained by entry upon the land, or enclosing it with a fence, or otherwise.” In the opinion delivered, the court' have applied the protection of the statute to a possession acquired, not by “actual settlement upon the land ” but to a possession acquired by “enclosing it with a fence.”

In the case of May's heirs vs. Jones &c, 4 Litt. Rep. 24, and in which I was counsel for the appellees, in the circuit court, the court say, “according to the most ohvious import of the act, there must have been an actual residence on the land in contest, for the time prescibed in the to authorize the jury to find for the appellees, under the operation of the act.” Henceforth, however, in direct violation of the principle here laid dow.n, defendants may protect themselves, under the opinion delivered, without anv actual residence on the land in contest, but bv the possession of a field upon the land in aon-test, which is connected by continuous fences, with the enclosures around the actual residence, situated off the land in contest. Whatever may he said about the facts of the cases from which I have' quoted the language of the court, with a view to show that the court ought riot to have used such language; it is nevertheless clear, that the language, as used, evidences the sense of the court that an actual residence on the land in contest is essential to constitute the bar. I cannot comprehend that reasoning which makes a man’s actual residence at a *322p]acC) other than where his houses are, and to make a man, by construction, an actual settler all over a thousand or ten thousand acres of land, seems to me to be a tota^ Pervers*on l,se °f language.

Remarks on the heiminShradert

T deem it useless to follow up later cases. They all harmonize, and taken altogether, prove that actual settlement, and actual residence, are the same thing, and that it must be upon the claim of the plaintiff at law, or complainant in chancery, before his right of entry can be tolled, or right of action destroyed, by seven years adverse possession. Before the passage of the act of 1809, twenty years continued, adverse possession, with or without residence, or actual settlement on the land in dispute, tolled the right of entry. The legislature intended to alter this rule, so far as it related to actual settlers on t’he band in contest, and to toll the paramount claimant’s right of entry, by seven instead of twenty years continued adverse possession, where the settlement or residence was situated on the land in controversy. I had considered these doctrines fixed. I now look upon them as overturned, and have discharged an unpleasant duty in protesting against it.

It is supposed, that an inference may be drawn from the language of the court in the case of Hite’s heirs vs. Shrader, 3 Litt. Rep. 446, favorable to the opinion now delivered. In that case, it is said, that Shrader, “settled out side of the interference, and that no part of his enclosure is within the bounds of the land claimed by the complainants; and according to the settled construction of the act, it only applies to cases where suit is brought for land on which the adverse claimant has been settled for seven years.” I think the court intended by this language to show, that there was no pretext to apply the limitation of seven years, for the protection of Shrader. As there was neither settlement, nor •enclosure, there was no ground for argument, and tiie court disposed of the case by declaring, that the statute had no application. If any inference can be drawn from the case, it is unfavorable to the doctrine now asserted, in the opinion delivered, because the court say, “Shrader settled outside the interference,” and conclude *323by saying that the statute only applies to cases where suit is brought for land on which the adverse claimant has been settled for seven yearsthereby obviously intimating, that a settler out side of the interference, cannot become a settler within the interference, so long as his actual residence or domicil remains and continues where he first located himself.