Lessee of Hepburn v. Hutchinson 2 Yeates 329

Lessee of James Hepburn against William Hutchinson.

To give efficacy to an improvement against a written title under the law of 3d April 1Í92, the former must appear clearly to subsist as such before the commencement of the latter.

Ejectment for 202 acres of land on Delaware Run, in Turbott township.

The plaintiff claimed under an application, dated 20th March 1792, founded on a certificate of two justices of the peace, that the lands were unimproved, consequent warrant of the 11th April following, and a survey of 202 acres, on the 28th of the same month, and patent dated 14th May 1792.

*330The defendant rested on a supposed prior improvement. He began to cut logs on the ground on the 9th April 1792, two days anterior to the date of the plaintiff’s warrant.

The court were clearly of opinion, that this case was not within the provision contained in the 5th section of the act of 3d April 1792, (3 Dali. St. Laws, 210,) “ that deputy surveyors 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 entry of such warrant with such deputy, except for the owner of such settlement and improvement. ” A settlement is defined by the 3d section of the act of 3d December 1786, 2 Dali. St. Laws, 488. To make an improvement efficacious, it must subsist clearly as such before the commencement of an adverse written title. If the defendant’s doctrine should be sustained, there would be no possible security for any paper title, where the land contemplated to be surveyed, lie at a distance from the seat of government.

Messrs. Duncan and Hall, pro quer.

Messrs. D. Smith and Walker, pro def.