Leasure against Wilson, 3 Watts 168

The opinion of the Court was delivered by Gibson, C. J. I should be sorry to have it supposed that this court had hesitated to mark its dissent from the doctrine predicated at the' trial. A rule of equity was laid down to the jury which I am unable to comprehend: which the judge himself seemed to think would not be recognized by those who have drawn their notions of right and wrong from the principles and maxims of the law; and which, if it be a rule of equity at all, is justly described by him as one which transcends all maxims.

The proposition, attempted to be established, presents the supposed equity as resting on the trespass and wrong of him who claims the benefit of it.

According to; the judicial construction of the act of the 3d of April 1792, established by a train of decisions from which it was admitted that no court could dissent without endangering the foundations of property, the land on which the plaintiff, or-the person under whom he claims, en-I tered in the character of a settler, was the lawful estate of another; yet though he had entered without or against the consent of the owner, it was thought that in .analogy to the customary terms be-| tweep warrant holders and persons employed by'them to perform the condition of settlement, the law would imply a promise to give him part of the land.

And for what ? For nothing that I can perceive but to ease the proprietor of the burthen of ownership. But in the cases from which the analogy is attempted to be drawn, the “ customary gratuity,” as it is improperly called, is given by actual and express contract, as the consideration for a settlement subsequently to be made in order to perfect the title; the consideration for the promise supposed to be implied here, is a voluntary, and it may be, unwelcome service. According to the construction put upon the act in question, in Huidekoper’s Lessee v.

Douglass, 3 Cranch 1, which in my individual judgment was the true one, the condition of settlement had been dispensed with by the continuance of Indian hostilities to the period of General Wayne’s treaty; and the title of the warrantee, on the principle of that decision, was perfect already.

But granting that by the decisions of our own court, which furnish the rule by which we are to be governed, the condition of settlement remained to be performed at the peace: yet a settler by contract would be bound to surrender the part reserved by the warrantee at the completion of the settlement and residence; for it would be unjust to allow him. the benefit of the contract after he had repudiated it by setting up an independent title in defiance of it, for the same reason that a lessee cannot be allowed to resume the character of a tenant and the advantages incident to it after having set up a title independent of the lease.

But it would be going immeasurably further, to create a contract in favour of a settler driven to the verge of a defence on an adverse title, when' he would have forfeited it by resistance had a contract in fact existed. The injustice of implying a contract for a part, from an adverse possession of the whole, is so glaring of itself, as to render any attempt to illustrate it not only unnecessary but futile.

And why should we force such a principle into our jurisprudence, to the disruption of the best established rules of property; or rather sustain it as á newly discovered common law principle of local origin 1 Nothing is alleged in support of it but the supposed hardship of “false principles and erroneously conceived doctrines” adopted by the tribunals in settling the construction of the act in question. The time has been when the imputation of vicious principles or doctrines to the judges of the supreme court of the United States, or of the supreme court of Pennsylvania, would have been thought a bold one.

With one illustrious exception they have passed away ; but they have left us a legacy in the results of their judicial labours by which it is to be hoped that posterity will have the wisdom to profit. It is not too much to say that our civil liberties can be preserved but on the foundations laid by them for the security of person and property; and that the permanence of our political liberty will be greatly influenced by the degree of our adherence to the principles of the constitution as settled by the federal judiciary. For my own

part I am convinced, that had the decision of Huidekoper v. Douglass preceded the decision of our own courts, it would have put an end to the contest, and given, not only to the country but to the losing parties, the benefit resulting from security of title and repose.

Even on the principles established by our own courts, a settler without a vacating warrant is a trespasser, and nothing is left him for the pretence of an equity, but the merit of personal exposure to danger in establishing a barrier to the incursions of a barbarous enemy, and the hardship of losing the fruits of his labour for having misconceived the nature and solidity of the adverse title. It is obvious that these two equities, so to call them, cannot'stand together.

A settler who entered on warranted land before the treaty of Fort Grenville, was an open and notorious intruder, because the title of the warrantee was protected without settlement by the special provisions of the law, while there was a reasonable apprehension of danger; and if he entered after the geueral pacification, he-had no merit from exposure to boast of. Even were that otherwise, his merit for a service to the public would be a subject of compensation out of the public purse, rather than out of the pocket of an individual who had not been particularly benefited by it.

For myself I never have been able to perceive any peculiar merit in the settler on this ground as regards the title of the warrantee. On the other hand, if he entered at the expiration of two years from General Wayne’s treaty, what equity could he derive from having mistaken the nature of the title, or from the hardship of having the question decided against him ? A desire to possess the property of another because we have expended our money or labour in improving it, is natural, but not the less unfounded in reason or justice.

Indeed the very distinctions of property itself, are not founded so much' on justice as necessity; for without security for the enjoyment of the produce of our labour there would be no incitements to industry, and society could not exist. As in the case of every other enterprise, the entry of a settler on appropriated land is dictated by his calculation of the chances of eventual loss or gain. And if the event turn out unpropitiously for him, who is to suffer for it?

Certainly not the warrantee, who was not the cause of the mistake, and did no act to induce the expenditure of labour which is the consequence of it. Such a case is within a maxim of universal law, resting on reason and the purest ethics, that a loss which is inevitable shall fall on him whose act produced it. But is the case of the warrantee destitute of merit ? The object of the state in offering her vacant lands for sale on the terms of the act of 1792, was not only to settle the country, but replenish the treasury; and these were equally meritorious in the sight of the legislature.

Had the}'- not been so, the lands' north and west of the Alleghany river, instead of being exposed to sale for cash, with a condition of subsequent settlement superadded, would have been offered at a credit, and on terms of settlement in the first- instance. I am therefore unable to, perceive an equity in either class so omnipotent as to uproot the settled foundations of property. The real hardship of which the settlers have reason to complain, has been produced by an injudicious disposition to-maintain their tides against the true owners and the true construction of the law. Had the decision in Huidekoper v.

Douglass been established as the rule of the state courts, the settlers would have had the land long since at a reasonable price, and for a tithe of the sum unavailingly spent by them in a harassing contest; and the country, instead of being shunned by the tide of emigration that set'in towards the west, would have been densely populated, and as highly cultivated as the beautiful region that adjoins it in a sister state.

Concurring in opinion with the judge, that the excitements caused by this controversy are nearly allayed, and heartily responding to his sentiment that he who would rouse them again cannot be instigated by either patriotism or a reverence for the institutions of the country, we esteem it a duty not to stimulate the resentments of the disappointed, or encourage unavailing hopes which would blow them again into a flame. We are of opinion that there is no implication of a contract or an equity arising out of the circumsta.nces disclosed in the charge, which could in any wise entitle the plaintiff to recover.

Judgment reversed, and a venire de novo awarded.