Leffee of Waddel v. Gray

recapitulated the title and testimony on both sides, and made three questions.

1. Had E. Myers a right to lay his location on any vacant land, supposing he had, before, laid it on Beattie’s land, which is not the land in dispute?

2. On 3d December, 1784, was there any thing to hinder E. Myers, from laying his location on the land in dispute?

3. Will the plaintiff's patent, as signifying the will of the proprietor, conclude you from examining the adverse titles, as they stood on 3d December, 1784?

1. The location applies exactly to this land, and would not apply to well to any other. E. Myers therefore mistook in his first survey, and got nothing by it; for an elder title intervened. Was he therefore bound by this mistaken election, or might he correct his mistake, and come upon the land which really answers the description in his location? I think he was not bound by his first election, and he might make a new survey on land answering the description in his location, unless, in the mean time, an adverse title, either positive or equitable, had, under the confidence of his first election, attached itself to the land described in the location, afterward reported to, and now disputed.

But it is objected, that Eleazer Myers had sold to Dougherty, and could not then change the application of the location. I answer, this lies not in the mouth of Waddel.

*251On 2d. December 1784, Waddel had no positive strict legal title. Had be then such an equitable title, as was sufficient to exclude the location from this land? I think not. His only title was a cabbin unfinished, and rails cut; a mere improvement (as to distinguish it from a settlement I will call it) made on a general land-jobbing scheme, and never pursued by the maker up to a real settlement. The title of Francis Waddel (if it were vested in Robert) was but precisely what the title of Rogers was. The only actual settlement was made by West. But why should Waddel derive any benefit from the labour of West, rather than the tenant in possession? Surely the tenant in possession has of the two the best right to claim under this labour of West's.

3. The proprietor or Commonwealth, or any other owner of property may give it to whom they please, provided they have not tied up their hands, by a prior engagement, either positive or equitable. But if they have, courts of justice will not suffer them to break through their prior engagement, but will hold them to it. On 3d December, 1784, they were bound to E. Myers. Therefore the case is to be confidered as of that date: and if E. Myers had a good title then, he has it yet. He had a good title then.

The jury being at the bar, ready to give a verdict, the plaintiff suffered a nonsuit.