Philip Pendleton Barbour

“ Pennsylvania always favored and encouraged actual settlements, and they were sanctioned and held sacred, without any inquiry as to the opinion which the settlers might have entertained upon the abstruse and doubtful question of state jurisdiction. Had Pennsylvania receded from the contest, and yielded to Virginia, without any compact, the territory which included the land in dispute, Watson's title would have been unquestionable. ”

“ The possibility, if not the certainty, of a different and opposite construction prevailing in the courts of Virginia, makes it both proper and necessary, that the true meaning of the compact should be sought for and declared by this court, unfettered by the opinions of others. It is found, in its terms, to recognise and save every description or right. The high contracting parties designed that the benefits secured by it to the claimants under both governments, should be equal and reciprocal ”

“ It is proper to remark here, that in Pennsylvania, a right founded on a prior actual settlement which has not been abandoned, is just as valid in law as a right vested by a prior warrant or patent. 'Title by settlement and improvement, is now as well established as any species of title in Pennsylvania; and very often has been preferred to warrant, survey and patent.' Lessee of Bonnet v. ”

“ The injustice of this exposition is not limited to settlers under Virginia; it would be equally fatal to the claim founded upon warrants and surveys under that state. The right to perfect such title by a patent from Pennsylvania, on payment of the Virginia price of the land, if not already paid, rests upon a footing neither broader nor more safe, than that of the settler with a Virginia entry. ”

“ 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 bon a fide settler, before the 1st of January 1778 ”

“ Watson's assignees being now plaintiffs, and holding under the junior grant, cannot maintain an ejectment, or recover in a court of the United States against the eldest patent. More especially, must Watson's patent fail, when a solemn compact has established the relative efficacy of each, and expressly stipulated that all conflicting titles in the disputed territory shall, without exception, be governed by this rule. A survey breaking into and including patented land, is void; was always illegal and inoperative, in Pennsylvania. ”

“ Hand's titles under Pennsylvania and Virginia are clearly the eldest, and under the compact, must prevail.
It is an unalterable regulation, founded in equity, to preserve the honor and good faith of both states so far as possible; each had made grants for the same lands; let the good old rule prevail 'prior in tempore, potior est in jure.' Watson was culpably negligent; he never indicated his claim or boundary, until he made an erroneous survey, the 1st of November 1786, four years after Hand's patents had been issued ”

“ Upon these entries, no surveys had ever been made, nor had the inceptive equity, which they are alleged to have conferred, been prosecuted in any way by the owners or holders thereof. It was not shown, that those entries described or called for the land in dispute; nor did it appear in evidence, that the improvement, which, by the law of Virginia, was made the basis of a Virginia entry, had every been made. Having no legal foundation, and being moreover abandoned, the defendant's Virginia entries are regarded as mere nullities, and undeserving of further notice. ”

“ 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. ”

“ But in the first place, it cannot be denied, that the land on which a man has built a house, and that also which has been cultivated and inclosed by him, may be ascertained with absolute certainty. Neither do we think it can be denied, that in the case now under consideration, the claim of the settler may be reduced to certainty, because it is bounded by the lines of adjoining surveys. So likewise may a claim by a settlement be precisely ascertained, when the settler has defined his limits by an unofficial survey, marked on the ground, and made known to the neighborhood: TILGHMAN, Ch. ”

“ 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 400 acres of land, by virtue of an act of the assembly of Virginia, passed in May 1779 ”

“ 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 risk incurred by the settlers. ”

“ For it was neither proved nor pretended, that Watson's title was surreptitious or fraudulent. If the learned chief justice intended to express a truism which no one ever disputed, and to take the risk of its being adopted by others, as a proper and the only basis of his conclusion ”

“ The defendants claimed under Edward Hand, who, by virtue of two land-warrants, granted by Pennsylvania, one for 300 acres, dated 24th November 1773, the other, for the same quantity, dated 27th November 1773, caused surveys to be made on both, on the 21st January 1778, and on the 9th of March 1782, obtained patents on both surveys, embracing the land in controversy. ”

“ The holder of a later warrant is not permitted to encroach upon a prior settler, and cut off land adjacent to his improvement, under the pretext that there is surplus land, and that the settler can fill his claim in another direction. Such encroachment was held unlawful, although made in 1814, upon a settlement which commenced in 1775, and upon which no legal survey had ever been made: Blair v. ”

“ Where is the evidence of such division? A great number of points-some of them of little importance-were discussed on that occasion; and a difference of opinion, upon any one of them, would lead to the brief memorandum of dissent made by the reporter. ”