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the survey was not made until some years after, pro- and of 270 courses contained in the field notes, which vided the warrant had been renewed according to the were several years in witness's possession, he left out practice of the Land Office of Maryland. But suppos. above one hundred and fifty of them; and the witness ing, as we do, that the warrant did not call for the land afterwards delivered the field notes to John Digges, the surveyed, the grant to Ross cannot be said to commence patentee. before the time of surveying it, viz. 30th of April, 1762, The lands in possession of defendant were thus thrown and is therefore a mere nullity. We can find nothing out of the returned survey, but were included in the re. in the articles of agreement between the proprietaries, survey, which was said to have corresponded with the to establish a title of this kind, to land in this state lines originally run upon the ground. against a person, who, like the defendants, afterwards acquired a regular title from the proprietaries of Penn, the point now under consideration.
There was much other testimony, but not material to sylvania, (which, as appears by the report, commenced in August, 1766,) a new trial was therefore granted, on stance, as follows: The lands in dispute lie four miles
The court in their charge to the jury, said, in sub. the point of fact, whether the land was called for by north of the boundary line between the States of Pennthe original warrant of 1760.
In the lessee of Thomas Lilly, v. George Kitzmiller, sylvania and Maryland. Independent of the proprietaat York, May, 1791, before Shippen and Yeates, Jus- grant lands beyond the limits of bis province. What
ries' agreements, lord Baltimore could have no right to tices, (Mss. Reports,) the case was as follows: The lessor of the plaintiff grounded his title on a Ma- though beyond their respective liinits, before the royal
ever, however, was granted by either proprietor, ryland patent for 6,822 acres, dated 11th of October, order in 1738, was secured to the settlers by their mu1735, founded on an original warrant for 10,000 acres, tual agreement, but the subsequent agreement of 1760 dated 1st of April, 1732, which, according to the cus, could not affect the rights of persons claiming under tom of the Land Office of Maryland, had been several either proprietor, previous thereto. The great question times renewed; also, on a Maryland warrant of re. in this cause is, whether the first survey included the survey, to re-survey the ancient metes and bounds, lands now possessed by the defendant. correct errors in the first survey, and add contiguous vacancies, whether cultivated or not, dated 15th of Ju
It appears to us there is a failure in the plaintiff's ly, 1745. A survey thereon of 3,679 acres, made in title in this early stage of it. Under the practice in October, 1745, and a patent, dated 18th of October, Pennsylvania, of making proprietary surveys, trees are 1745.
marked on the ground, and where there are no trees, or He also relied on the two agreements of the propric. natural boundaries, artificial marks are set up to distintaries of Maryland and Pennsylvania, the first dated guish the survey. By these means, if the surveyor reMay 10th, 1732, under the 11th article whereof, “Per- turns a d auglit, different from the courses and distances sons holding lands under either of the proprietaries, actually run, the mistake is easily corrected. Should thougha beyond the division line of the two provinces, the surveyor commit an error in his return, it shall not were secured and quieted in their rights and posses affect the right of the party. Such cases have frequentsions," and the order in council made in pursuance
ly happened. thereof, on the 25th of May, 1738. And the second
But the case is very different under the ancient prac. agreement on the 4th of July, 1760, under the proviso tice of making surveys under the proprietaries of Ma. whereof, it was declared, that "nothing therein con- ryland. Such surveys were merely ideal, and precisely tained should be construed to extend to the respective fixed on paper alone. No trees were marked except grantees, or those claiming under them,” and deduced the beginning boundary. Lord Baltimore's instructions, his title to both. patents, under a will, and divers mesne which have been read, clearly show us, what his inten. conveyances and descents.
tions were, and that he was concluded only by the The defendant's title rested on a warrant to Martin courses and distances returned. The survey was ain. Kitzmiller, for 150 acres of land, including his improve. bulatory, not confined to a certain spot of land, but was ments, from the Land Office of Pennsylvania, dated 5th governed by the variation of the compass, and was of February, 1747; a survey thereon of 164 acres, made continually shifting The courses and distances returii. 30th of May, 1759; a patent dated 17th of September, ed forned the survey, and determined on an exact 1759; and a conveyance from the patentee to him. It admeasurement, the particular lands granted, as often was proved that the defendant and his ancestor had as they were run. Those courses and distances alone been in possession of the lands in question since the were binding on the proprietor, and consequently on year 1738, or 1739. It was admitted on both sides, that his patentee. It necessarily follows under our idea, the temporary line between the two provinces, was run that as the testimony of witnesses, or any other circum. in 1739—the final division line run by Mason and Dixon stances shown in the cause, cannot establish a title to was completed in 1767, and that the proclamations of lands without the limits of the original survey as returnthe respective governors issued in 1774.
ed, ihat the plaintiff must fail in the present suit. The instructions of lord Baltimore to Charles Carrol, We mean, however, in thus giving our opinion, which bís agent, dated 12th of September, 1712, were also we have taken some pains to form, to contine ourselves given in evidence on the part of the defendant, whereby to the express case before us. It is not intended to the mode of assigning warrants was pointed out, and affect other rights. Persons who have bought lands wherein he directs, that in each survey, the boundary from plaintiff, even within the resurvey, may have actree alone should be marked, and the courses and dis- quired titles by their possessions and improvements, tances specified in the return of survey, as the fairest which should not now be shaken. The plaintiff suffered mode, and best calculated to prevent civil suits!
a nonsuit, With an intention to show fraud or mistake, in the deputy surveyor, it was proved by an ancient witness,
PART II. that the deputy surveyor did not return the first survey of the ancient practice and customs of the Land Office, as actually made by him on the ground; that the quan.
previous to the year 1765. tity of 10,000 acres was really contained within the lines of the lands run by him, including the lands in question, By force of the royal charter, William Penn, and his and that upon making his plat, and finding the figure to successors, as proprietaries, were the undoubted lords be very irregular, he got displeased, and swore he would of the soil. They stipulated, however, with the pure not cast up the contents, or return it in that form, and chasers under them, to extinguish the aboriginal right then reduced a number of lines into one, struck off five of the natives. They alone had this power. No indior six angles in different places, and made a new plat vidual, without their authority, could purchase of the different from the courses and distances run on the land, | Indians; and the people themselves, by legislative acts, recognized, and aided them to enforce this important with large appropriations of liberty lands, and it became principle.
almost a science to trace out original titles. From such They had the unquestioned right to dispose of their cause is to be attribut d the singular appearance of the lands in any manner they thought proper. But without original minutes of property, which exhibit a record of settlement, a grant of an extensive territory would have transfers and mesne conveyances in abstract, and pedibeen useless. It the condition of colonization had failed, grees, and even of intermarriages. It is not improbathe grant must have been resumed; and if the disposi- ble, however, that in some cases, these may be valuable tion of the great founder had not been the most benevo documents at this day. lent, a commanding necessity obliged him to encourage
In the minutes of the Board of Property, August 15th, emigration anil cultivation, and to part with his lands 1765, there is a special order respecting old rights. upon reasonable terms.
The preamble suggests that great quantities of lands on The officers of the Land Office were his officers and such rights had been again applied for, and twice grantagents. The commissioners of property were controlled ed, and, “The deputy surveyors are directed to send by his regulations and authority; and it will appear, that in to the surveyor general's office, all the surveys on from the acts of these proprietary agents, many rights old rights which they can discover not to have been yet to land have spring up from time to time, which have, returned-And all future surveys thereon to be returnnot improperly, been termed inchoate, irregular, im- ed in two months after made." perfect, and equitable titles; founded not only upon By the seventh section of what has been termed the warrants, surveys, and patents, but upon settlements. divesting act, ante. vol. 1, page 481. all rights, titles, connived at, or acquiesced in, depending sometimes estates, claims, and demands which were granted by, upon the situation of the proprietor's title, or the unset- or derived from the proprietaries, their officers, or othtled state of his family, upon the supposed circumstance crs, duly commissioned, authorized, and appointed, or of the Land Office being shut, or encouragement given otherwise, or to which any person or persons, other to settlers on or near controverted boundaries, and to than the said proprietaries, were, or are entitled, either promises. Hence also cristom and usage of the Land in law or equity, by virtue of any deed, patent, warrant Office from early times have vested interests, which or survey; or by virtue of any location filed in the Land have afterwards been confirmed by judicial decision, Office at any time or times before the 4th day of July, and recognized by laws. Thus in an instance which 1776, were ratified, confirmed, and established forever, may be found in Kyle v. White, 1 Binney, 247, a pro. &c. mise made to a trespasser, to induce him to move off of By the 5th section of the act in the text, persons the unpurchased Indian lands, by secretary Peters, was possessed of old rights, &c. were confined in locating considered as entitling the trespasser to a preference the same to the lands already purchased of the Indians. afier the purchase. Whatever uniform plan of settling the country and
Of Quit Rents. conveying bis lands, the first proprietor may have con- All quit rents were abolished by the ninth section of templated, or devised, it must very early have been the divesting act before mentioned. Any observation found impracticable on experience. At present no respecting them, therefore, can have no further interegular system can be triced upon the public records. rest than as they may be considered as a part of the The terms of sale were changed from time to time; and history of the titles to lands as they stood under the as the affairs of the Land Office were not familiar to the proprietary government. mass of the people, it is not to be wondered at, that It does not appear that any certain sta ndard or rule the assembly, even in the year 1755, in an address to was established with respect to quit rents at the first governor Morris, declsre, "that the state and manage settlement of the province, except with the first pur. ment of the Land Office is pretty much of a mystery.” chasers, which was one shilling sterling for one hundred Votes of assembly, vol. 4, page 464.
acres. --See votes of assembly, vol. 1, part 2, page 41.
Lands which were allotted to servants, who came Of First Purchasers, or Old Rights.
over with the first settlers, and faithfully served out The original lists of first purchasers are recorded in their time, were not liable to purchase money, the quit the Land Offices. The privileges to which these were rent was therefore greater. The seventh article of the entitled, with respect to city lots, and liberty lands, conditions and concessions runs thus, "That for every and the price paid by them, and the quit rents to which fifty acres that shall be allotted to a servant, at the end they were subject, have been already stated. To these of his service, his quit rent shall be two shillings per first purchasers, the conditions and concessions made annum; and the master, or owner of the servant, when in England, chiefly related. Wherever they desired he shall take up the other fifty acres, his quit rent shall to sit together, and their quantity amounted to five or be four shillings by the year; or if the master of the ten thousand acres, they were to have their lot or town. servant, (by reason in the indentures he is so obliged to ship cast together, &c., and in every one hundred do,) allot out to the servant fifty acres in his own divi. thousand acres, the governor or proprietor reserved sion, the said master shall have on demand alloited to ten to himself, by lot, which shall lie but in one place. him from the governor, the one hundred acres, at the It has been already shown, that this related merely to chief rent of six shillings per annum.” the original purchasers.
When warrants were issued upon what were called Many of these original rights were long out standing, the new terms, it appears by the minutes of the comand several not surveyed until after the revolution, and missioners of property, the price was five pounds for probably, some few have been entirely abandoned. one hundred acres, and the quit rent sometimes a bu. The subject is at this day intricate from a variety of shel of wheat, sometimes one shilling sterling. This
Many of the purchases appear to have been latter was called the common rent. The new rent, and made upon speculation by persons who never came the most usual, was one penny sterling per acre. What. into the province; and transfers were made of parts or ever reservation was made, was stated in the warrant, parcels of large warrants to different individuals. For as part of the contract. these parcels separate warrants were again issued to in the commission of October 28th, 1701, to Edward survey the subdivisions to the under purchasers By Shippen, Griffith Owen, Thomas Story, and James such means, it has not unfrequently happened that a Logan, as commissioners of property; authority is given considerable surplus has been surveyed beyond the to them to grant lands for such sums and quit rents
, &c. amount of the original purchase. By the accumulation as to them or any of them, should seem reasonable. of old rights, by purchase, in one person, it has also The same authority is given by the new commission happened, that entire squares of city lots, as appurte. of November 9th, 1710. nant, in early times have been granted to individuals, The assembly, in their address to the proprietor,
when he was about to sail for England, September 20th, ed in this province, the surveyor, that lays out the 1701,requested of him,"That the inhabitants or possess same, shall allow for roads and barrens, after the rate of ors of land may have liberiy to purchase off their quit six acres for every hundred acres to the owner of such rents, as formerly promised. Votes of Assembly, vol. lands, for which said allowance of six per cent. no rent 1, part 1, p. 146.
shall be paid to the proprie'ary, his heirs and assigns!" In his answer, he tells them, “If it should be my lot This act was repealed by the queen in council, Feb. to lose a public support, I must depend upon my rents ruary 20th, 1713; but the custoin was established, and for a supply; and therefore must not easily part with continued from that time to this day. them; and many years are elapsed since I made that See votes of assembly, vol. 1, part 1, p. 145, 148, offer, that was not accepted. Ibid. 149.
153, 161, 163, 164, and appendix 14. Some controversy, indeed, there was about this public support; and the assembly alleged that quit rents
of Townships. were originally agreed to be paid to the proprietor, on It appears to have been part of the plan of William account of the extraordinary charge he would be at in Penn to have laid out the province into townships, of the administration of the government. That he had 5000, or of 10,000 acres, and to have surveys made sold lands to a great value, and reserved rents sufficient, within the respective boundaries of such townships; in a moderate way, to maintain him or his lieutenant, and that purchasers of large tracts might lie together; answerable to their station. What if we add, say they, he accordingly introduced this clause into his warrants, that we desire the proprietary would be content to live “ According to the method of townships appointed by upon his rents, &c. Considerable altercation, and no me.” This plan could not be long pursued. The clause little warmth took place upon this subject between go in the warrants, however, continued long after the obvernor Evans and the assembly. The dispute, however, ject of it ceased. It was omitted in the warrants for died away. The assembly continued to provide for the the lands in the purchase of 1784, but was not discongovernors down to the revolution. See votes of as- tinued in the preceding purchases, until it was struck sembly, vol. 1, part 2, p. 41, 45, 155; vol. 2, p. 10, 12, out by the present Land Officers, as having no present 15.
meaning, or utility. Of the six per cent, allowance
Of Head Lands. The allowance was originally ten per cent. In the A township was appropriated under this name, and in address of September 2oth, 1701, before mentioned, which, as appears from the minute books, all the serthe assembly request, “That the ten acres in the hun- vants' lands were to be surveyed,so many acres per head, dred, may be allowed according to the proprietaries' according to the conditions and concessions. This could engagements.” I am very willing, answered the pro be claimed only by such servants who came in with the prietor, to allow the ten acres per cent. for the ends first purchasers. proposed by law, and not otherwise. The law referred to, was the law of property, made
Of Manors. shortly before at New Castle, with which the people Manor courts were never established in the province. were dissatisfied, and some misunderstanding had taker The great troubles of William Penn, in all probability, place respecting it. The assembly, therefore, on the prevented his attention to this subject, which would 9th of October following, (1701,) again request “That perhaps have failed in the experiment, and might have the misunderstanding about the ten acres per cent. be been obnoxious to the people, and have introduced a rectified; and the allowance for roads and highways be state of vassallage, to which they could not long have allowed to all lands whatever, whether already taken submitted. That he kept it in view, appears from the up, or to be taken up hereafter.” On the 231 of Oc- following entry, in minute book, C, p. 6 " The protober, they sent a member to the governor, with the prietor gave to Martin Zeal, a paper wrote all in his request, varied in this manner, "The assembly de- own hand, and signed by him in the following words, sires that the proprietary will be pleased to allow ten (I am willing to let Elizabeth's husband have 50 acres in acres per cent, for roads, uneven grounrls, &c. unto my manor of Pennsbury, on the other side of the run, all persons, purchasers and renters, either taken up, or to the Shoemaker's, lying upon the said creek, and near to take up: and for such as shall hereafter rent, five running back to William Biles' line, at three pence per cenç, at least.” The proprietor sent them the fol- sterling per acre, to begin to be paid the third year, and lowing message on the 25th Friends, complaint ha- so forever after, holding of the said manor, and under the ving been made, that some persons had not thic benefit regulations of the court thereof, when erected.” War. of the law of New Castle, with respect to the allowances rant ordered by the commissioners accordingly, (1701 ) of ten per cent. I consented to alli)w the said ten acres Technically speaking, therefore, there were no maper cent., according to the said law; but never intended nors in Pennsylvania, although the proprietary tenths, to make myself debtor for those deficiencies which and other large surveys for them, were so called. I be were not to be had; and understanding you look upon tenure by which the charter was beld, was that species that law unequal,as giving to some ten per cent. where of feudal tenures called Socage, by fealty only, in lieu there is overplus, and but two per cent. upon sur- of all other services, and the tenures under William veyed lanıl, where no more is to be found; I am there. Penn were by a kind of rent service. The patents fore willing to allow or make good six per cent to all were in free common socage, in lieu of all other serpersons, as well to those that want, as to those who do vices. By the abolition of quit-rents, all estates derived not want the same upon a re-survey This did not immediately from the commonwealth, are unconditionmeet the sentiments of the assembly; and the amendment al fees simple, with a reservation only of a fifth part of proposed by them to the bill of property was, “ That gold and silver ores, at the pit's mouth.' Happily for whereas ten per cent. is allowed by the law made at Pennsylvania, this reservation has been merely nominal, New Castle, fur roads, barren lands, uneven grounds, and the surest mines of wealth, are the virtue, industry and differences of surveys unto all such persons who and simplicity of the people. Every grant of Jand, have overplus in their tracts; the same ten per cent. however, under the proprietary government, was noi may be allowed unto all persons whatsoever, who have minally declared in the patent to be held as of some taken up lands by right of purchase, or on rent, or certain manor. that shall hereafter take up by virtue of former grants; In the eighth section of the divesting act, vol. 1, p. and that all persons hereafter purchasing may have five 481, in the reservation of the private estates of the per cent.”
proprietaries the manors are thus mentioned; "LikeBy the act of 1711, chap. 183, it was provided, wise all the lands called and known by the name of the “That for all lands hereafter to be taken up, or survey. proprietary tenths or manors.” It has already been
shewn, in Carson v. Blazer, before cited, that the terms months after the publication hereof, provided always, of the conditions and concessions, confining the tenths the usual time allowed for plantations, be already ex. of the proprietaries to one place, and to be taken by pired; and that this extends not to those persons that lot, relate:I only to the grants to the first purchasers. hive forfeited their lands in the annexed counties, (the But the proprietor had the right to withdraw any land, three lower counties,) to whom I allowed a year and a not previously appropriated to individuals from the half time, after iny arrival, to settle at the old rent, and general mass of property, and to appropriate it to his have nevertheless neglected to do the same; and that the
Such was the judicial construction, upon the said commissioners are further desired and required 10 Springetsbury manor case: See Penn v. Kline, 4 Dal- take the greatest care, that justice and impartiality be las, 407.
observed towards all in the disposal of land, as well in William Penn issued his warrant, elated 1st of Septem. reference to quality as quanti y, that what is right in the ber, 1700, tu Edward Pennington, then Surveyor sight of God and good men, my always be preferred, General, to survey for the proprietor 500 acres of eve- for it is the best and lastingest bottom to act and build ry township of 5000 acres; and generally, the proprie- upon." try tenth of all lands laid out, and to be laid out; and Given at Worminghurst place, in old England, the similar warrants were issued by the successive proprie- 24th of the 11th month, 1686. taries, to every succeeding Surveyor Ceneral. War- This proclamation was published in the province the rants were likewise issued for the appropriation of the 26th of the 5th month, 1687. islands in the different purchases.
These proceedings, however, appear to have had no All these special appropriations to proprietary use, operation, nor does any record appear of any forfeiture, are entered together, since the revolution, and are pre. or re-grant of any of the lands surveyed on the original served in the Surveyor General's office.
rights. The province continued to increase and pros. Regulutions of Settlement.
per, and applications for new lands were almost daily
made; the method of townships was very soon lost sight Ny the fourth section of the concessions and condi- of, and surveys promiscuously made according to the tions, any number of purchasers, whose number of wishes of the purchasers. The warrants in 1701, exacres amounted to five or ten thousand, desired to sit press "That the land shall be seated within two years together in a lot, or township, their township was to be after the survey.” Vacating warrants will be hereafter cas! together, in such places as had convenient barbors, considered. or navigable rivers attending them, if such could be found; and in case any one or more purchasers did not
Of surveys, and surplus lands. plant according to agreement in this concession, to the This subject engaged much of the attention of the prejud.ce of others of the same township, upon com. first proprietor; he was desirous to be just, but he was plaint made to the governor, or his deputy, he might tenacious of his rights. There was at the date of his award (if he saw cause) that the complaining purchas- charter, a very considerable settlement on the banks of er might, on paying the surveying, purchase money, the Delaware, and the titles were generally derived and interest
, be entitled to, and invested in the linds so , from the governors of New York, under the crown. not seated. And by the preceding article, purchasers The inhabitants were quieted in these titles; and infrom one to ten thousand acres, or more, were not to stances occur of grants from Sir Edmund Andross, which have above one thousand acres together, unless in eve had not been surveyed, being ratified, surveyed and ry three years they planted a family upon every thou. patented by order of the commissioners of property. sand acres: and by the tenth section, every man was But it was supposed that these old rights included a bound to plant his lot within three years after it was set large quantity of land more than was expressed in the out and surveyed, otherwise it was to be lawful for new patent, or the possessor had any right to by the original comers to be:ettled thereon, paying the survey money, warrants, or orders for the surveying or laying out the and the first purchase is were to go higher up for their same. Large quantities of surplus lands were also sup: shares.
posed to have been included within the patents issued These regulations were certainly neglected, and the from his own office. A method was therefore adopted proprietor endeavoured to enforce it by proclamation, of issuing warrants of the re-survey, and after cutting which still exists on the journals of the commissioners of the overplus, confirming the qirantity first purchasof property, 1687, leiter F, in these words,
cil, by a new patent. The practice, however, eventuProclimution concerning seating of land by William ally faileil. It may have been possible that in some caPenn, proprielor and governor.
ses too much land was fraudulently included; but in
nrost instances it may have happened through mistake, “Since there was no other thing I had in my eye in or want of skill in the surveyors. Experience has prothe settlement of this province, next to the advance. ved that surveys made in early days, especially in a new ment of virtue, than the comfortable situation of the in country, have most generally overrun the measure, up. habitants therein; and for tht enil, with the advice and on a re-survey. The system must therefore have be. consent of the most eminent of the first purchasers, or come impracticable, and was discontinued after the year dained that every township consisting of five thousand 1713. 'l'he proceedings are however liere given, as acres, should have ten families at the least, to the end part of the ancient land history of the country. that the province might not lie like a wilderness, as The following instructions were given by William some others yet du, by vast vacant tracts of land, but Penn, on the first of the 2d month, "called February, be regularly improved, for the benefit of society, in | 1686, to his commissioner's. help, trade, education, government, also roads, travel, "That no warrant of re-survey be granted by you for entertainment, &c. and finding that this single constitu- land within five miles of the river Delaware, or any navition is that which eminently prefers the province in the gable river " esteem and thoughts of persons of great judgment, "That all overplus lands, upon re-surveys, granted ability and quality, to embark with us, and second our by the former commissioners, not already granted, or beginning, I do hereby desire,and strictly order my trus not patented, be reserved to my use and disposal." ty and loving friends and commissioners, William Mark. "No lands to be laid out next or adjoining to that in ham, Thomas Ellis and John Goodson, or any two of habited, and that in every township one share be re: them, that they inspect what tracts of land taken up, served for the proprietary, with all the Indian fields that lie vacant, and unseated, and are most likely to give are in the said township. cause of exception and discouragement to those that are “No land containing mines, to be granted without able and ready to seat the same, and that they dispose. William Penn's express warrant. Book F. of, if not sealed by the present pretenders within six In the commission of October 28th, 1701, when the
LIBRARY OF FOREIGN LITERATURE.
proprietor was about to sail for England, (book G,) naming, or not true naming counties, or places where among other things, he authorizes the commissioners of the lands were situated, &c. But nothing therein conproperty, “ To grant lands for such sums, and quit- tained, obliged the proprietary to make good any parents, &c. as to them, or any three of them should seem tent annihilated, or made void by due course of law; or just and reasonable; also, to sell intervening,concealed, to make good to any purchaser of a right, or rights to or vacant lands; to dispose of surplus lands; and to make unlocated lands, who inadvertently, or by misinformasatisfaction out of my other lands and estate, (my ap- tion, had obtained, or should obtain a patent or confirpropriated land excepted,) in the said, province and mation of lands which should be discovered to be the territories, as the law in that case directs, for all such prior right of another person, further or any more, than deficiencies in measure, as upon a due re-survey shall the same quantity of land in the next advantageous be found in any tract or tracts, or parcels of land, to the place that such purchaser should choose and discover respective persons thereby grieved,&c. And while on to be vacant and free from all other claims. But where shipboard, on the first of November, by a second com- such prior right should appear and take effect against mission, he gave them power to erect manors, with ju. any such person or persons, who had purchased the risdiction thereto annexel, as fully as he could do by same tract, or parcel of land of the proprietary, or his the charter. This latter power, however, they declined commissioners, or agents, by a certain name, or by any exercising,on the application for such a manor in Buck's agreed location in that particular place, or the warrant county by Mr. Growdon.
expressing the same accordingly, then, and in such The law alluded to, was the law of property, passed case, the proprietary, his heirs and executors, should at New Castle, in 1700, and confirmed in 1701; which refund and make good such second purchaser the full enacted (among other things,) “That any person's sum or value, which he the said proprietary, or his lands in this province should be re-surveyed; and if up agents, did receive for the same, together with lawful on such re-survey (after allowance of four acres in the interest, from the time such payment was made; and in hundred, over or under, for difference of surveys, and both the above mentioned cases, if the latter purchaser, six per cent. for roads,) an overplus shall be found, the bis heirs or assigns, shall have made any improvements possessor thereof should have the refusal of it from the on the said land, such improvements were to be valued proprietary, at reasonable rates; and in case of disagree- by persons indifferently chosen, and paid for by the first ment about such rates, the proprietary was to choose purchaser. two men, and the possessor two more, who should And as several persons had obtained grants or patents either fix a price on the said overplus land, or appoint before the date of the charter, for more lands than they where it should be taken off for the proprietary in one had any right to by their original warrants, or orders entire piece at an outside (saving to the purchaser or for the surveying, or laying out of the same, they were renter, his improvements and best conveniences,) any not to be confirmed, but as to the residue or overplus three of whom agreeing, shoukl be conclusive; and the of said lands, were declared to be null and void, and of charges of re surveying should be borne by the pur- none effect; and new patents were to issue for the chaser, or renter of the main tract, if he bought the quantity they were entitled 10 overplus, or if not, then by the proprietary; and that The act then proceeded with respect to the re-surdeficiencies should be made good by the proprietary, veys which had been made under the act of 1700, and according as he received for overplus land as afore the overplus was to be offered to the possessors at reasaid.”
sonable rates, to be fixed, in case of disagreement, by Under this act many re-surveys were made, and referees, who were to fix the price, or appoint where over-measure found; but the act expired before the it should be taken off for the proprietary, in one entire same could be cut off, or the rates settled; and the pro- and convenient piece, at an end or outside, saving, prietary was not satisfied for his over-measure; in con- to the possessor his improvements and best conve. sequence of which the act of 1712, entitled " An act niences, and the residue was to be confirmed to the confirming patents and grants," (chap. 183, and Ca owner by a new patent, and the overplus be disposed rey's and Bioren's appendix,) was passed.
of by the proprietor. This act confirmed all lands wbich any person or per- If upon any such re-surveys any tract had been found sons held and enjoyed, or ought to have, hold, and'en- deficient in the number of acres for which it was at first joy within the province, as well by or under any old granted, all such deficiencies were to be made good by grant or estate from the proprietor, or his commissio:1- the proprietary, after the same rate he received for overers of property and agents, pursuant to such person's plus lands in that neighborhood. right, &c. as also by, or under, any old grant, patent or This act was repealed in council, 25th of February, warrant obtained from governors or lawful commission- 1713. Votes of assembly, vol. 2, p. 150. ers under the crown of England, before the charter to The resuming surplus Jands, and allowing for defithe proprietary, or by any other legal, or equitable ciencies, appear by this act to have been mutual stipugrant, right, title, entry, possession, or estate whatso- lations between the proprictary, and the people. We ever; but it was not to be construed or adjudgeel to find nothing more, however, npon record, respecting confirm any lands taken up by virtue of tije said old re-surveys, after this period. With respect to the al. grants, which were not duly seated or improved by the lowance für deficiencies,the instances in the proprietary grantees, or their assigns before the year 1682, nor for times are numerous; and it appears to have been a prinany more, or greater quantity, than should appear by ciple, to allow a credit for over-payments, upon the any'grant from the proprietary, or from lais predeces- most equitable of all rules, that no man should be comsors, the foriner governors aforesaid, to be the grintee's pelled io pay for that which he could not obtain, or just due (over and above the six acres by the said pro- where the consideration had failed. With respect to prietary allowed to be added to every hundred acres of laying warrants, or locations on other advantageous lands for roads and barrens, and the four acres, over or places, not at first contemplated, or what is called shiftunder, to be accounted for difference of surveys;) nor ed warrants; that subject will be considered in its proto create a right to the possessor or claimer of lands, per place, in the note. that were not taken up, or surveyed by virtue of a
(To be continued.) warrant, or order, from persons empowered to grant the same, and by a surveyor appointed for that purpose.
LIBRARY OF FOREIGN LITERATURE. The Roll's office was declared to be an office of record; and all patents to be matters of record, and to At a meeting of the Stockholders of the Pennsylvania have no need of delivery before witnesses, livery and Library of Foreign Literature and Science, held at the seizin, or acknowledgments, as deeds of other persons.. Library, under the Athenæum, on Monday, 11th NoNo patents to be prejudiced by mis-recitals, or for mis- / vernber, 1833. VOL. XII.