Jacobs v. Figard 25 Pa. 45

Jacobs versus Figard.

Under the Act of the 30th December, 1786, continuity of actual residence and possession is the vital principle of a pre-emption right, and a part of its legal definition.

If the settler should be compelled to quit his residence on the land by any extraordinary or occasional occurrence, he must return as early as convenient, or it will be deemed an abandonment: he cannot substitute claim, for residence, and convenience for prosecution of the title.

By returning “ as early as convenient,” the law means, as early as he rear sonably can.

To keep possession without a residence, for the purpose of preventing others from making a settlement on the land, is not a compliance with, but a fraud upon the law.

Where the question of abandonment depends upon mere lapse of time, and there is no dispute as to the length of it, it is a question of law to be decided by the Court, without regard to the intention of the party.

Relinquishment of actual residence for five years and nine months, without any circumstance to bring the case within thp equity of the statutory excuses, would be an abandonment irrespective of the intention of the claimant.

Error to the Common Pleas of Bedford county.

This was an ejectment for sixty acres of land. The facts appear to be as follows: — John Whitehead, in March, 1881, made an improvement on the land, and on the 26th November, 1834, had it surveyed, and the lines marked, embracing 60 acres and 148 perches. The improvement was made and the possession continued in strict accordance with the Act of Assembly, until between the 1st and 15th December, 1847. This is not disputed.

By deeds duly executed, Whitehead’s title to the land became vested in the plaintiff, to whom a warrant was granted on the 2d September, 1853, upon which a survey was made the 27th of the same month, against the acceptance of which a caveat was entered by the defendant.

The defendant claimed under a warrant issued on the 14th February, 1853; upon which a survey was made on the 7th March, 1853, which was accepted by the board of property.

*46J. W. Wesley, who was the last actual resident upon the land under the plaintiff, left it in December, 1847, when it was leased to William Lowry and others, by those under whom the plaintiff in error claims, who have paid the taxes up to this time. Neither Lowry nor the other lessees ever resided on the land, but on adjoining tracts; but set up a claim of possession, sleeping in the house a few nights, using the house, which was in bad repair, to keep hay in, and for the purpose, as Lowry testified, of keeping other people out.

Points submitted by the plaintiff in error:—

1. That the law raises no presumption of the abandonment of an improvement, from the relinquishment of the possession, for a period of time less than seven years.

2. That, if the jury believe that the plaintiff and those under whom he claims, either by themselves or their tenants, occupied the land in dispute and the house thereon erected, having designated the boundaries by an actual survey, with the intention to make it a place of abode and supporting a family, and that the occasional absence therefrom was always attended with the intention to return, the said plaintiff had a right by improvement, and that his perfection of that right, by a warrant and survey, entitles him to recover in this action.

Errors assigned: 1st. The Court erred in not answering the points submitted by the plainfiff in error. 2d. The Court erred in charging the jury as follows, viz.: “ The question for the jury to determine is, was this improvement abandoned after December, 1847 ? If it was, the plaintiff cannot recover. The plaintiff says the improvement was kept up by Evans and Lowry, tenants of the then owners, and the payment of taxes. Evans seems to have had a lease for one year. Lowry for four years. Both were men of families, and had their homes with their families as well as their property elsewhere than on the land. Neither of them ever resided upon the land, and Lowry says that by the terms of his lease he was not 'required to reside on the land; that he had a few bedclothes and articles of property in the house, and that he slept there a few nights, and this was done to prevent other persons from going upon the land. If these facts are believed by the jury, then this was not such a continued residence settlement upon the land as the law requires, and the defendant was right in treating it as abandoned, and he is entitled to your verdict.”

Russell, for plaintiff in error.

First cited Noble v. McClintock, 6 W. & Ser. 58; Brentlinger v. Hutchinson, 1 Watts 46. Where the question of abandonment arises from a relinquishment of the possession for a period less than seven years, accompanied by circumstances indicating an intention to abandon, it is then a *47mixed question of law and fact to be left to the jury. In the case at bar, all the circumstances indicate a contrary intention, and if the question of intention had been left to the jury, they must have so found.

2d. A bona fide improvement was made in 1831, which was kept up for sixteen years; the owners leased it to their tenants, occupied and used it, totally inconsistent with any intention to relin quish their right; had it surveyed and marked in 1834, long before the seven years had expired. Do these facts show any intention to abandon?

See Wilson v. Watterson, 4 Barr 214; Ib. 219.

Hall, for defendant in error.

The Court properly left the facts to the jury. The ease (1 Watts 46) cited by plaintiff, fails them entirely: the Court in that case say, “ to constitute a settlement right to land, a settler is required to make the land his place of abode, and continue it. And see Wilson v. Watterson, 4 Barr 214; McDonald v. Mulholland, 5 Watts 175. And see Cluggage v. Duncan, 1 Ser. & R. 120; Watson v. Gilday, 11 Ser. & R. 340; Pfouts v. Steel, 2 Watts 410; Wyncoop v. Heath, 10 Watts 420, 4 Barr 219; Heath v. Biddle, 9 Barr 273.