— It is now the province and the duty of the court and
jury to decide, whether the survey in question was properly made, under the act of the 3d of April 1792. (3 Dall. Laws, 209.) The act itself has laid down no general rule ^ascertaining what land and extent of settle- p. „„ ment and improvement will warrant a survey ; nor is it the intention *- *140of the court, upon the present occasion, to lay down any general rule upon the subject. It may, however, be observed, that personal residence must accompany any settlement, on which a survey can be regurlarly made; unless such danger exists, as would prevent a man of reasonable firmness from remaining on the land ; and even then, the animus residendi must appear. Again, though we agree, that what constitutes a settlement will essentially depend on the circumstances of each case ; we may state, negatively, that deadening an acre or two of timber, planting a few peach-stones, a few apple-seeds, or a few grains of corn, can never be deemed circumstances, amounting in themselves, to a settlement, in any case, though a cabin should also be put up, if the party resides at a distance, and no tenant actually occupies the land. If these can give no legal preference, much less will it be deemed a case of preference, contemplated by the act of assembly, that a man has set his foot, or his heart, on a tract, and claims it as his own. It is hardly necessary to add, that we do not think the acts of the lessor of the plaintiff, in the present case, constituted such an actual settlement, as authorized a survey ; and consequently, he has no title to recover the land.
Brackenridge, for the plaintiff. Woods and Collins, for the defendant.The plaintiff’s counsel, finding the opinion of the Court thus decidedly against him, suffered a nonsuit.