Lessee of Joseph Marlatt, plaintiff in error, v. John Silk, and John M'Donald, 11 Pet. 1

Mr. Justice Barbour delivered the opinion of the Court. This is a writ of error to the district court of the United States, for the western district of Pennsylvania, in an action of ejectment, in which the plaintiff in error was plaintiff in the court below: and in which judgment was given for the defendant in that court.

It comes up upon two bills of exception, taken by the plaintiff in error to the opinion of the court, at the trial: the one, in relation to the admission of certain evidence which he alleges to have been improperly received; the other, to the ruling of the court, upon several points of law, in its charge to the jury. We think it unnecessary to discuss any of these points but one, which we consider decisive of the case. And that is .the relative priority of the respective rights under which the parties claim. The facts of the case are these.

Thomas Watson, under whom the plaintiff in error claims, on the 25th of April, 1780, obtained from certain commissioners of Virginia, a certificate entitling him to four hundred acres of land, by virtue of

an act of the assembly of Virginia, passed in May, 1779; the fourth

section of which, after reciting that great numbers of people have settled in the country, upon the western waters, upon waste and unappropriated lands, for which they have been hitherto prevented from suing out patents, or obtaining legal titles, &c., enacts, “That all persons, who, at any time before the first day of January, in the year one thousand seven hundred and seventy-eight, have really and bona fide settled themselves, or their families, or at his, her, or their charges have settled others, upon any waste, or unappropriated lands, on the said western waters, to which no other person hath any legal right or claim, shall be allowed, for every family so settled, four hundred acres of land, or such smaller quantity as the party chooses to include such settlement.” This certificate was granted in right of a settlement which had been made by Watson, in the year 1772.

His evidence of right under Virginia was subsequently transferred to the land office of Pennsylvania, (the land having, under a compact between that state and Virginia, hereafter more particularly noticed, been ascertained to be within the limits of Pennsylvania;) and on the 1st of November, 1786, a survey of his claim was made and returned to the land office of the latter state, and a patent issued thereon by that state in the year 1791, including his settlement made in 1772, and including the land in controversy.

The defendants claim under Edward Hand, who, by virtue of two land warrants, granted by Pennsylvania, the one for three hundred acres, dated the 24th of November, 1773, the other for the same quantity, dated the 27th of November, 1773; caused surveys to be made on both on the 21st of January, 1778; and on the 9th of March, 1782, obtained patents on both surveys, embracing the land in controversy.

Both Pennsylvania and Virginia having'claimed the territory, of which the land in controversy is a part, as being within their limits; the dispute was finally adjusted by a compact made between them, which was. ratified by Virginia on the 23d of June, 1780, with certain conditions annexed; and absolutely by Pennsylvania, on the 23d of September, 1780, with an acceptance of the conditions annexed by Virginia.

That compact, inter alia, contains the following stipulation: “ That the private property and rights of all persons, acquired under, founded on, or recognised by the laws of either country, previous to the date hereof, be secured and confirmed to them, although they should be found to fall within the other, and that in disputes thereon, preference shall be given to the elder, or prior right, whichever of the said states the same shall have been acquired under; such persons paying to the states, in whose boundary their land shall be included, the same purchase, or consideration-money, which would have been due from them to the state under which they claimed the right.” The rights of the parties must be decided by the true construction of this stipulation, as applied to the foregoing facts of the case.

What is that construction? In the first- place it is declared, that the property and rights of all persons, acquired under, founded on, or recognised by the laws of either country, previous to the date of the compact, (that is, the year 1780) shall be secured and confirmed to them. The act of Virginia of May, 1779, before cited, is in point of chronology previous to the date of the compact. Is notdhe settlement of Watson, made in 1772, recognised by that act?

It is in explicit, terms, because the act makes an allowance of four hundred acres of land to all those who shall have bona fide made a settlement on waste and unappropriated land, before the first of January, 1778; and it has been seen that Watson’s, settlement was' made in 1772. What was the motive which induced the legislature of Virginia to make this allowance? We find it declared in the

preamble to the fourth

section of the act of May, 1779: it was, that persons who had made settlements, had been prevented from suing out patents, or obtaining legal titles, by the king of Great Britain’s proclamations, or instructions to his governors, or by the then late change of government, and the then present war having delayed, until that time, the opening of a land office, and ’the establishment of any certain terms for granting lands. And what was the consideration, we do not mean pecuniary, (but valuable, on which the allowance was founded? The same

preamble informs us, that it consisted in the justice of making some compensation for the. charge and risque which the settlers had incurred in making their settlements. It is apparent, then, that the legislature did not pass the law in question as making a donation, but as allowing a reasonable compensation, for something of value, on the part of settlers; not of money indeed, paid into the coffers of the state, but of charge and risque incurred by the settlers.

We. think, then, that the allowance thus made, is, in the language of the compact, a right recognised by the law of Virginia previous to the date of that compact. Considering it as thus recognised, and consequently as secured and confirmed, we come now, in the order of the argument, to the other part of the-stipulation aforesaid; which declares, that in disputes thereon, preference shall be given to the elder or prior right, whichever of the said states the same shall have been acquired under. How is this question of priority to be decided?

In answering this question, we think, that the first thing to be done is to ascertain the character of the rights of the parties, as settled by the laws of the states, under which they respectively claim, as these laws stood at the date of the compact. In this aspect of the subject, it has been seen that the defendants claim under warrants granted by Pennsylvania in 1773, and surveyed in 1778.

But the act of Virginia of 1779, having allowed 400 adres of land to those who had made a settlement before the first of January, 1778, and having founded that allowance on the charge and risque which they had incurred; in our judgment, the equitable claim, or the inchoate right of the parties, must consequently be referred, for its commencement, to the period when the charge and risque were incurred — that is, in the case at bar, to the year-1772. If, as-we think, this principle be correct, this mere comparison of dates would decide the case.

It has, however, been argued, that if this case were in a Virginia court, it would be decided in favour of the right under which the defendants claim, because that is by warrant, before the act of 1779; and in support of this, the court has been referred to the case of Jones v. Williams, 1 Washington, 230, in which the court of appeals of that state says, that before the act of 1779, those lands (that is, lands on which settlements had been made) might have been entered and patented by any person, notwithstanding prior settlements by others. That the act of 1779 applies to controversies between mere settlers.

That it does not set up [rior rights of this sort, so as to defeat those legally acquired under warrants. The error of this argument, as we conceive, consists in this; that the doctrine here stated, however true in itself, docs not apply to the case at bar.

That was laid down, in a case, between two persons, both of whom claimed under Virginia, and was therefore governed by the laws of Virginia, alone; whereas in this case, one of the parties claims under Pennsylvania, and the other, under Virginia; and the case is to be decided, not by the laws of either state, by themselves: except that as before remarked, the character of each right is to be fixed by the laws of the state, as at the time of the compact under which the right is claimed; and then the comparison between the two is to be made, not under the laws of either state, but under the stipulation in the compact before referred to.

Thus to illustrate, the origin of the plaintiff’s claim, being, in our opinion, as operated upon by the act of Virginia of 1779, to be referred to the period of Watson’s settlement in 1772; and that of the defendants, as affected by the laws of Pennsylvania, being of later date; the foundation being thus laid for deciding which is the prior or elder title; we then apply to the case the compact, which declares, that the preference shall be given to the prior, or elder. We suppose that it will scarcely be denied, that by the act of 1779.

Virginia recognised the inception of the title of settlers, as being of the date of the settlement as against herself; if so, can it be imagined, that by the compact, she intended their title to take its date from a later period?

If it should be said, that so also Pennsylvania cannot be supposed to have intended to impair the force of the titles claimed under her; the answer, that each state intended that its own laws should settle the character of the right claimed under it, as to the time of its inception, and in every other respect; and then, that according to the inception thus fixed, the rule of priority should decide, as provided for in the compact.

It was argued, that the question had been settled in the supreme court of Pennsylvania; and the doctrine stated in 12 Wheat. 167, was referred to, where it is said — That this court adopts the state decisions, because they settle the law applicable to the case; and the reasons assigned for this .course, apply as well to rules of construction growing out of the common law, as the statute law of the state, when applied to the title of lands. To say nothing of the division of the court, in the case referred to, it is a decisive answer to this argument, to say — That the principle does not at all apply.

It was laid down in reference to cases arising under, and to be decided by the laws of a state; and then the decisions of that state are looked to, to ascertain what that law is; whereas in the case at bar, the question arises under, and is to be decided by, a compact between two states: where therefore the rule of decision is not to be collected from the decisions of either state, but is one, if we may so speak, of an international character.

Upon the whole, we are of opinion, that the judgment of the court below was erroneous in charging the jury, that the title of the defendants was the elder and prior fight, and was therefore protected by the compact; on the contrary, we think that of the plaintiff was the elder and prior: the judgment must therefore be reversed, and a venire facias de novo awarded. Mr. Chief Justice Taney and Mr. Justice M‘Lean, dissented. Mr. Justice M‘Lean.

The Chief Justice and Justice M’Lean think that the condition of the compact, “ that the private property and rights of all persons acquired under, founded on, or recognised by the laws of either country previous to the date hereof, be secured and confirmed to them, although they should be found to fall within the other; and that in disputes thereon, preference shall be given to the elder or prior right, whichevér of the said states the same shall be acquired under,” placed the land in controversy under the common jurisdiction of both states; and that the first appropriation of the land, under the authority of either state .must be considered, under the compact, as the prior right.

The Pennsylvania warrant which was located on this land, was surveyed on the 21st of January, 1778. At this time the Virginia claimant, though he lived on the land, had no colour of right. He was in fact a trespasser. The Virginia act of 1779 provided, “that all persons, who, at any time before.the 1st of January, 1778, had bona fide settled upon waste or unappropriated lands, on the western waters, to which no other person hath any legal right or claim, shall be allowed four hundred acres,” &c.

Now, if the land in controversy was subject to the jurisdiction of both states, and might be appropriated by either, was it not appropriated under the Pennsylvania warrant, before the Virginia claimant had any right under the act of 1779? This is too clear to be controverted. In the language of the compact, then, had not the Pennsylvania claimant “the prior right?” The act of 1779 does not purport .to vest any title in the settler anterior to its passage.

The settler, to bring himself within the act, must show that he was a bona fide settler before the 1st of January, 1778; and this entitled him to four hundred acres of land under the act, provided]“ no other person had any legal right or claim to it.” At this time the land, as has been shown, was appropriated under the Pennsylvania law, and which appropriation, if effect be given to “ the prior right,” under the compact, does constitute within the meaning of the act of 1779, a “right or claim to the land.” In 1 Wash.

Rep. 231, the court of appeals of Virginia says, that the law of 1779 does not “ set up rights so as to defeat those legally acquired under warrants.” This land, by the compact, was considered as liable to be appropriated by a Pennsylvania as by a Virginia warrant, before the act of 1779; and in ascertaining the priority of right the time of the. appropriation is the fact to be established. This cause came on to be heard on the transcript of the record from the district court of the United States for the western district of Pennsylvania, and Was argued by counsel.

On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said district court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said district court, with directions to award a venire Facias de novo.