These cases were, by consent, tried together in the court below, and verdicts for defendants; and were argued together here.
These cases were before this court on a former occasion; but, as often happens, the arguments were more full, and the points on *252which the cause turned different from what they were on the former hearing.
It will be necessary to state the case minutely.
E. Stevens proved that, forty-nine years ago last May, Reuben Collar lived on the land, raised grain, and had a cabin where Marcy now lives, and after some years sold to Streak, who enlarged the clearing, built a grist and saw mill, and thirty-nine years ago sold lo John Marcy, who moved on and has resided ever since. The improvements extend from Wilson’s line (on south and southwest) to the east branch of Tunkhannock creek, the whole length of Marcy’s claim on the creek; that he claimed to Millard’s line on the north; don’t know his lines on east of creek; he always said he expected to hold four hundred acres; we all settled on the land as vacant.
Five or six other witnesses proved that Marcy’s claim was, for twenty or more years, bounded on the west by Wilson, who sold to Jayne in 1817, and by Jayne since ; on the north partly by Millard, west of Tunkhannock, and by Mark Hartly, whose line was at the east branch, and whose warrant and survey were about 1811. That on the east Marcy claimed until about eighteen years ago. Meredith and Cly mer showed a survey in 1775 on warrants, and since then his line on east is bounded by them ; that he once claimed part of their land and cut timber, as Hartly also did on Meredith’s land, but not since their title was known.
Charles J. Miller proved that in 1829 he came to that neighbourhood, and wishing some land, Marcy agreed he might have some land adjoining Millard on the north, and west of Hartly, but not this timber land; that in running his land he took in part of the timber; that Marcy cut off the timber taken in by him and let him have the land ; hence he inferred that the timber was Marcy’s object. That he, Miller, had built a shed, house and blacksmithshop, and cleared a little, and had sold his seventy acres for 500 dollars, though he had not taken out any warrant.
The witnesses proved that the timber was cut adjoining the Wilson or Jayne Hue on the west, the land given to Miller on the north, and Marcy’s cleared land on the east; that the timber had been very valuable, but the land on the side of the hill nearest the creek was poor, and some of it stony. Some witnesses also proved that Marcy had always saved this timber. The cutting and value of the land, with and without the timber, were proved; 20 or 25 dollars per acre, and 8 or 10 dollars after timber gone.
It was also proved that the whole vacancy, including what Miller got, was less than three hundred acres.
The defendant then produced Marcy’s application, proving before two justices his settlement commenced in 1786, his warrant paying interest from that date, and his survey of two hundred and four acres, which included the land where timber was cut. Nothing was said here to show why this was not shown by Marcy himself.
*253Marcy’s land was thus bounded, and so understood by all’ these witnesses for many years, by Meredith’s line on the east, by Mark Hartly and the line agreed on by him and Miller on the north, and by Wilson, now Jayne, on the west. The timber was cut on the northwest corner. Nothing was said particularly of his southern boundary.
The defendants then showed a warrant to Andrew Gardinier for ninety-four acres of vacant land, dated the 16th of April 1832, a survey on the 26th of April 1832 of eighty-six acres ninety-four perches, and a patent on the 18th of June of the same year, and called witnesses to prove that Marcy had abandoned all land not within his fences and fields,
I shall, at the risk of being tedious, give the very words of the witnesses on this point.
William Wilson said : I reside on the Jayne possession, as it is called; have lived there'fourteen years; as I always understood Marcy to say, the timber was his principal object, and he did not mean to buy it of the commonwealth. He spoke of the mountain land where he had been getting timber since I came there. I think he spoke of it more than once ; think twice or more. He told me the back land was of no use, not worth paying taxes on. My land lay west and his east, and east and south is stony after the timber is off; the more a man has and pays taxes on the worse he is off. Marcy got lumber south of the creek; he had a contract with Halstead, who cut one hundred and fifty logs there. I took it he spoke of lands north of the road, as Meredith took that on the other side. Says Marcy’s land (suppose including the bottom) is worth 50 doff lars an acre with the lumber on ; worth 25 dollars now.
Being cross-examined, says: these conversations were since 1823; it may be a year or two; cannot fix the time nearer; recollect, a year or two after I came, Marcy told me I could not hold more than I had in possession, for one man has as good a right as another if he does not pay taxes. That ended the conversation. Marcy wanted to buy my improvements.
William Smith. In 1831 I worked for Marcy seven or eight months; was harvesting corn on the island fronting this limber. I asked Marcy how far his timber extended that way. He replied, he did not know. I replied, he had a good deal of timber on that hill. He said he had. I asked him how far back of where he had been cutting timber his line was; said he did not know as he went there at all; did not know as he had any land there ; did not wish me to say any thing about it; for if Coil found it out, he would go and get the timber, and he could not keep him off; and he, Marcy, must get it off soon. Said nothing about the title.
Joshua Millard. Had 'a conversation with Marcy since the cause went into the supreme court. He spoke of the trouble Gaidirtier made him ; that it was a pity he did not take it out of the office before. He said he did not think he would have taken it out, but that *254Gardirfier had got him in such a situation that he was obliged to take it out; that there was no law to oblige him to take it out. Did not hear him say any thing about taxes.
William Hardy. Proved that when Marcy first heard of the title of Meredith and Clymer, he had a number of trees out on it, and witness told him he thought it would be well to take it out of the office or he would lose these logs on it. He answered be did not think the land was worth taking out of the office, for he thought he would soon cut the timber off. This was sixteen or eighteen years ago.
Charles Miller, called by defendant, repeated what I have already written, with little variation: that Marcy told him he might take a piece adjoining Millard, but so as not lo take this timber land ; and that soon after he went there, Marcy cut off the timber which Miller had included within his line. The land in question lay between that and Marcy’s mill. I drew the inference, his object was the timber.
Matthew Jackson proved, that in the winter before Gardinier’s warrant was taken, he had some intimation of the intention, and told Marcy, who said, no one would be rascal enough to do so. That Marcy spoke to him to run round his land to see how much was in it, that he might take a warrant for it. Others proved that he had proposed to take out his warrant in the spring, when he went down on a raft, as he was old and lame.
Chapman, the deputy surveyor, who surveyed Gardinier’s warrant, said : I made the survey for Gardinier. The manner showed me he did not care about making much noise. Gardinier spoke in general terms about the hostility against surveyors, and particularly about Marcy’s not being willing to have surveys. M’Cracken and Clark were chainmen and Gardinier carried the axe; this was in the afternoon. Next morning W. Hartly and Smead were there when we run on the east side of the creek. There was some apparent desire not to be seen by the neighbours. Just before we got through the flat, Smead was left in the woods, his gun went off. Gardinier and some of the hands ran into the bushes. Smead immediately said his gun went off by accident. I said I wanted no secrecy. Gardinier said he wanted no difficulty with Marcy. I made the survey as he directed. Gardinier said he wanted to avoid all collision with Marcy, and had a right to survey the land.
William Hartly proved, that Smead and himself were employed expressly to look out and give notice if any of Marcy’s people came in sight.
The survey was made in this manner: it took in all the woodland west of the creek bounded by Miller, Jayne and Marcy’s improved land ; it came to Tunkhannock creek, and then ran up and included the creek and some of the land on the banks, and included an island cleared and cultivated by Marcy; at this part it was bounded by Marcy’s improved land on both sides. At the upper end, and east *255of the creek, Marcy’s fence was on his line for about sixty rods; a line was run along this fence and another eight rods north of it, thus taking that breadth offMark Hardy’s land; it then ran round close to Murray’s fences and took in all the woodland on tire east side of the creek.
When this case was up last year, the question was not presented, whether there was any legal evidence on which Marcy’s right to die land could be doubted. This was assumed in the argument by die court. The argument and opinion, of the court were on other matters. To me it seems this is the great question, and a very important one.
There was a time when rights to land by improvement were considered of little weight. M’Curdy v. Potts, in 2 Dall., seems to confine them to what was within the fences ; but ever since Smith v. Brown, in 3 Yeates, the right has been extended to agreed lines or designated boundaries; and it has been considered as settled by the profession, for more than forty years, that an improver on vacant land had a right to four hundred acres, though he may take less; and our books, at regular intervals, show that some one disputed this occasionally, and it was always affirmed. In Gordon v. Moore, 5 Binn. 130, this was explicitly settled, where the improver had designated his looundary by a known line, before the adverse warrant was taken out; and in Barton a. Glassgo, 12 Serg. fy Rawle 149, where there was an improver actually residing on land when an adverse warrant was laid, and which improver had not designated his boundaries, it was held that the improver was not limited bylines run without his knowledge, but he was still entitled to four hundred acres, in such shape as the jury should decide to be reasonable, and this was before decided in Blair v. M’Kee, 6 Serg. & Rawle 113.
An improver’s right, at one period, was sold as a chattel, by the executors or administrators ; since 1760 this has not been allowed; it can only be sold by administrators under an order of the orphan’s court; Duncan v. Walker, 1 Yeates; will only pass in fee by will executed so as to pass lands, and having words of inheritance. 2 Yeates 379. Settlement rights descend in same manner as lands held by patent, and widows will have dower of them; 3 Yeates 571, 572; may be mortgaged, conveyed in trust or entailed. In short, a tract occupied forty years constantly, houses, barns, mills and one hundred acres of cleared land, as John Marcy’s land was, except as against the state to whom the purchase money was due, is as good a title as any man could have to land in this commonwealth ; and when his boundaries were for twenty years designated as here, his title to the woodland within those boundaries was as good as to that within his fences. The act of the 30th of December 1786 provides that no warrants shall issue from the land office of this stale for any tract of laud on which a settlement is made, unless to such persons who have made the settlement or their legal representatives, until the 10th of April 1788, and if any shall issue otherwise than aforesaid, it. shall be deemed to have issued by surprise, and shall be of no avail in law. The time has been and is yet extended. *256In Merchant v. Millison, 3 Yeates 76, and more particularly* in Davis v. Kuyler, 4 Binn. Rep. 160, it will be seen how far a settler who continues his improvement, and has his boundaries between him and his neighbours ascertained, will be protected against subsequent warrantees and dishonest surveyors. In the last case, and in Porter v. Henry, 4 Serg. fy Rawle 441, the improver taking a warrant and having a survey made was held not to be conclusive evidence of abandonment of the part not included in the survey, but must be left to the jury; and in both cases the jury held it no abandonment under the evidence in those cases, and the finding in each case was approved by this court. The first question to be noticed in this case is, was there any evidence that ever John Marcy, at any moment, said any thing which could be tortured intoan abandonment of the lands on which the timber was cut? Wilson is the principal, if not the only witness: he says Marcy spoke of the mountain land where he has been getting timber ever since I was there. Now, all the testimony is, that Marcy never got any timber in this grove, which he was reserving as near his mill and house. He showed Miller in 1829 where he might settle on land north of this; but not on this; and in 1831, when on the island opposite where the grove stood, he said he had a good deal of timber on that hill. The rest of the conversation is perhaps unintelligible to us; how far his land extended beyond where he had been getting timber? Now we don’t know where he had been getting timber, or the timber alluded to; we only know that after Miller came, he had cut on what he allowed Miller to take, and that lay beyond the land in question. The conversation proved by William Hartly only shows he did not think it right to take a warrant at that time; besides that related to land since given up to Meredith, a mile from where this purchase was executed and east of the bush. Can any jury believe that even Gardiuier, who did not want Marcy to know, and who had two scouts out. with guns to give notice if any of Marcy’s family came in sight, thought, this land was abandoned? I pass over the fact, that Marcy at. that moment was wishing to purchase from Wilson land adjoining this very lot of timber. If a jury could in any country be found who, would say he ever thought of abandoning every tree outside of his fences, another most material question in law arises. These conversations were not with Gardinier, nor in his hearing, and were at least thirteen years before he took out his warrant.
I have endeavoured to show that the right of Marcy, who continued occupying this land, was as to all, except the state, as good as if he had a warrant or patent; transmissible only by deed or parol on delivery of possession and receipt of the price, or, as has been held, by gift, and the donor taking possession and making valuable improvements, as in Taylor v. Eckert, and Benson v. M’Henry. In each of those cases, however, the communication was direct between the parties, “go on the specific land and you shall have it.” In each case there was immediate possession, improvements continued *257twenty years, and only claimed after death of donor by his heirs. So in the case of the permission to Miller by Marcy, and immediate possession, and house and smithshop built, and land cleared by Miller. We have not among our reported cases much on this subject. The cases have occurred in the common pleas. In New York it has occurred, and been the subject of repeated decision. In 6 Johns. 21, parol evidence was admitted to support a tenancy or to satisfy doubts as to possession, but not as evidence of title or disclosure of title ; it would counteract the beneficial provisions of the statute of frauds. 7 Johns. 188, not admissible where the disclaimer is not made to or in the presence of defendant. 10 Johns. 336, if an interest passed, no subsequent disclaimer by parol can divest it, for a freehold interest cannot be divested by words in pais 16 Johns. 302, 303, it is said to have been frequently settled that a parol disclaimer cannot divest a right.
If two or three men by each swearing that a landholder told him he had no title, and this when no other person is present, it cannot be disproved,.and it will be a cheaper way of depriving a man of his lands than by digging up his line trees. There are many hundred valuable tracts held by improvement: if proof that the owner, who has continued to reside on, and cultivate, and pay taxes, can be deprived of all his woodland, by proof that he or his father said something fifteen or twenty years ago, it is time it was known. The timber land is the most valuable part of many of these tracts.
The evidence in this case presents a curious history of men who violate every law of God and of man, every social and moral duty; but yet will do it in a way which seems to violate none. John Marcy runs round eight hundred or a thousand acres that he may seem to be taking timber from his own land; when speaking of this land hq says, the land from which I have been taking timber is not worth paying for. As the several owners appear and show title and lines, he cuts no more on their land, and no doubt sets his conscience at ease for all he had stolen from them, by this appearance of respecting their titles. But he does not escape so, even in ihis life. He has assisted to introduce a laxity of principle, and complains that younger men now want his timber. They will not openly steal it, but remember some long forgotten expressions, or invent some, and under colour of these take out a warrant for land and survey it. so as not to leave him a tree for his sawmill, or for rails, or for firewood, under pretence that he had abandoned it; they know he has not; they know that he will resist their survey, and they go armed to protect themselves while surveying what they pretend he had disclaimed; for farther colour they pay the state at the rate of 10 pounds per hundred acres for land which on Marcy’s improvement would cost above 40 pounds. To seem within the law they pay 25 dollars, and take Marcy’s property, worth from 500 dollars to 2500 dollars. Certainly Marcy’s conduct has been highly culpable, but no law punishes it by forfeiture of lands and tenements.' I am therefore *258of opinion that even if the jury can believe John Marcy used all the words proved by the witnesses, and if they can believe he was speaking of the lands immediately round his clear land, yet as these words were spoken many years ago, not to the defendants nor in their hearing, they did not give Gardinier any right nor colour of right to make his survey or cut this timber; and more especially as no neighbour ever heard of this abandonment, and in 1829 to Miller he expressly claimed this land, and as land even then thought of little value has since been sold by Miller for 7 dollars per acre.
As against the improver still residing on and clearing the land, Gardinier’s warrant and patent, in the words of the act quoted above, are of no avail in law; if Marcy’s claim was abandoned, they might give title against a subsequent claimant.
But another point was discussed in the common pleas and here, which, although in my opinion not material to the decision of this case, yet deserves some notice. I have stated that, by the direction of the owner, and with the knowledge of the surveyor, the Tunkhannock creek, running between Marcy’s cleared fields, was surveyed for Gardinier. When this brought the party to the upper end of Marcy’s land, they went into Mark Hartly’s land, and east through it until they were past Marcy’s clear land and then ran by his fence so as to take all his woodland east of the creek, as they had before all west of it. On this eastern part Gardinier built a cottage house the next day after his survey, and put M’Cracken and his family in it the same night, and who lived there more than a year,- Gardinier claiming it-; this cabin and occupation were before Gardinier & Co. cut the timber in question. Since the first trial, this house has been pulled down ; and at the argument here, Gardinier’s counsel said he admitted the survey including the creek and also the land east of the creek could not be held, but claimed right to that west of the creek where the timber was cut. The judge below held the survey of the creek and of Hartly’s land void ; but that Gardinier could hold ibe two separate parcels east and west of Marcy’s cleared land. I have endeavoured to show that the whole was unsaaisd_on the grounds stated. Í am also of opinion that no warrant can be laid so as to include two separate parcels of land. I do not speak of the case where the last warrant is by mistake laid across an old survey, which when claimed may separate the two ends of the last survey ; in this case it was done with full knowledge, and the owner and deputy surveyor both knew it; but they wished to seem to make it one survey. Attempts to defraud the state and others have not been countenanced in this court. Applicants for lands were directed to put each an application in for the tract he wished to purchase, and on the 3d of April 1769 priority of right was settled by priority of number drawn in a lottery; but when any person put. in two applications for the same traer, to double his chance, he lost both and could get neither. De Haas v. Galbraith, 2 Yeates 305, and other cases.
*259I may assume, then, that if two separate parcels cannot be openly and directly surveyed and returned on one warrant, the same thing cannot be done covertly and fraudently, so that the surveyor-general may accept the return wiLhout knowing its true character. On the 8th of April 1785 was passed an act whereby to provide further regulations so as to secure fair and equal proceeding in the land office, and in the surveying of lands. The first eight sections relate in terms to warrants to be thereafter issued for lands purchased from the Indians in 1784; the next nine sections (except the twelfth, as to laying off districts in last purchase) in their terms relate to all lands in the state ; the eleventh is the section under which every deputy since appointed has given bond for faithful performance of his duty ; and in it is given the authority to the surveyor-general to appoint deputy surveyors.
The fifteenth section is in these words: “in making any survey by any surveyor he shall not go out of his proper district to perforin the same, and every survey made by any surveyor without his proper district, shall be void and of none effect; and the surveyor-general and his deputies are hereby severally directed and enjoined to locate and survey, or cause to be located and surveyed, the full amount of land contained and mentioned in any warrant in one entire tract, in such maimer and form that each tract shall not contain in front on any river, &c. &c.
The act of 3d April 1792, entitled an act for the sale of the vacant lands of this commonwealth, in its first section fixes the price of all the vacant lands in every part of the state ; the sixth is a repetition of the fifteenth section above quoted, except that the word lake is inserted after river.
The instructions from the surveyor-general to his deputies, from about 1710 down to this time, direct, in substance as above, that each warrant is to be surveyed in one tract. No lawyer at the bar and no judge on the bench ever saw or heard of two separate and distinct parcels of land being surveyed and returned on one warrant; the land officers never sanctioned, or where they knew of it, never received such a survey. This is the first, time since the settlement of the province where a court has been asked to sanction such a survey. I am aware that in Steinmitz v. Young, 2 Binn. 520, it is said to have been decided in Albright v. Maginnis that the fifteenth section above quoted did not extend to any land out of the purchase of 1784. That case has been so reported, and no such point arose or could arise or was decided. See 2 Yeates 485. But the first clause of the section, as to surveys made out of the district, see Wright v. Wills, has often arisen, and it was decided by M’Kean, chief justice, at nisiprius, that it was not applicable to lands out of that purchase. That question lias often arisen, and somehow or other has been always got over, generally because the line of the districts was uncertain and had never been ascertained. In Harris v. Monks, 2 Serg. & Rawle, Judge Yeates treats it as undecided ; and where the *260irregularity has arisen by mistake, I give no opinion about it; but here it was intentional on the part of the owner; and the deputy surveyor, in relating it, thought it necessary to say, by way of excuse, he made it as he was directed; it was done to grasp that for which otherwise there was no colour.
No warrant can be granted unless upon a certificate of two justices, on their own knowledge, or on the oath of a witness that the land is vacant, or if improved, how long imprbved. The meaning of this was and is, to prevent evidence of title being obtained from the land office for any land already appropriated ; but this practice may evade the letter and spirit of this provision, and leaves open a door to obtain an appearance of title against all law.
If this is permitted, how far is it to go 1 There are many thousand surveys in the land office containing a quantity less than the amount called for. May a new survey be made and other land be returned on each of these 1 and if not on each of these, why on the land in question1? Our land titles have occasioned many suits and much uncertainty; and I can see no good reason, or no reason at all, for introducing at this day a practice never thought of, or at least never heard of before, and this to assist an unhallowed attempt to rob a settler, of fifty years’ constant residence, of half the land which by all former decisions was clearly his right.
I am of opinion the survey is totally void; but if Gardinier could hold one of the parcels, he made his election and built on and occupied for more than a year the part east of Marcy’s fields, and an election once made is conclusive.
Judgment affirmed.