tions of the answer.

Fisher v. Haldeman.

A brief statement of some of the admitted

facts and charges of the bill will suffice.

It commences the history of the case with the first charter to and immigration of William Penn, the proprietor of Pennsylvania. But we do not think it necessary to go farther back

*than the year 1760. In that year, the proprietors, [*192] claiming that the islands in the Susquehanna and other

navigable streams were their private property, had them surveyed and returned as such.

About the year 1798, the persons under whom complainant claims were found by the agent of the proprietors in possession of the island, and claiming a right, from their long occupancy, to a preemption right as settlers. They had occupied parts of the island as far back as 1749 or 1750, some ten years before the proprietors had surveyed it; and though not in possession at that time, had afterwards returned. They were told by the agent for the Penns, that they had no title, and if they wanted a legal title they must purchase from the Penns, and that islands never had been subject to be taken up by settlement, as the other proprietary lands. These occupants refused or neglected or were unable to purchase; and about the year 1800, Thomas Duncan purchased from the agents of the Penns. Finding these occupants on the land, he told them they had no title; that islands had never been open to pre-emption by settlement, and that he was the purchaser from the Penns of the legal title. He demanded the possession of them, offering to pay them the value of their improvements, and for a release of their claim. They accordingly released their claim, gave up their possession, and received a consideration in money from Mr. Duncan, of about twenty shillings an acre. Mr. Duncan then took possession, and he and those claiming under him have had possession from that day to this, over fifty years.

In Pennsylvania, occupants or settlers on land are never considered as holding adversely to the proprietors, or to the State, their successor. Where the land was subject to pre-emption in favor of settlers, those who had obtained an equity by virtue of such a settlement or improvement, had a good title as against subsequent purchasers. But until they paid the purchase money, and obtained their patent or deed from the proprietor, no length of possession anthorized a presumption of the payment thereof, or of a grant as against the proprietors or State.

In order, therefore, to evade the effect of the release by the occupants, and the surrender of their possession to Mr. Duncan, who held the admitted legal title, the bill charges:

Vol. ii-23

Fisher v. Haldeman.

1. That Edmund Physic and John R. Coats, the agents of the Penns, combined and conspired with Thomas Duncan to defraud the settlers of their title to this island.

2. That this fraud consisted in the assertion that "islands had never been subject to be appropriated as other proprietary [*193] *lands, by settlement or location, but were treated as the private property of the Penns, and, as such, sold by special

contract only."

3. That the persons in possession, believing such to be the law, surrendered their possession and released their claim, whatever it might be, to Thomas Duncan, for the consideration of twenty shillings an acre, which was much less than the full value of the land.

4. That this representation, with regard to the custom or traditionary law of the province of Pennsylvania, was not true, and that Mr. Duncan must have known it to be so, and therefore made a false representation of the law to the settlers.

5. That the falsehood of this representation was not discovered till 1822.

6. That suits were then instituted, in which the judgments were against the title of plaintiff, in consequence of erroneous or unjust decisions of the courts.

Without noticing the objections to this bill on account of staleness, and the defense that Haldeman is a purchaser for valuable consideration without notice, it is plain that the whole foundation and superstructure of the case rests on this assumption, to wit: "That in 1749, by the law of the land, a pre-emption right to islands in the Susquehanna river could be obtained by settlement." If this be not so, the plaintiff's case falls to the ground, and the numerous other objections to this bill need not be noticed.

Now, this is a question of fact, depending on the history and traditions of the province of Pennsylvania, of which the decisions of her own courts are the best evidence, and conclusive on this court. The order of survey of 1760, by which the islands of the Susquehanna, and this among others, were appropriated to the private use of the proprietors, together with the manors reserved, is itself prima facie evidence that the proprietors never considered these islands as open to settlement as other lands. And this inference is fully confirmed by the instructions given by William Penn, before he left England, to the three commissioners for the settling of the colony, in which he said: "Let no islands be disposed of to anybody, but let things remain as they were, in that respect, till I (Hazard's An. 530.)

come.

The State of Pennsylvania, by what was called the "divesting

Fisher v. Haldeman.

act," assumed, for a certain consideration, all the proprietary rights of the Penns over the colony, as distinguished from their private rights of property, and pursued the same policy which had been adopted by them as to islands in navigable rivers. The act of 18th April, 1785, orders islands in the new purchase

*to be sold for the best prices that can be gotten for the [* 194 ] same, and declares, "all occupancy and every survey, claim, or pretense for holding the same islands by any other title, shall be utterly void."

The statute thus recognized and continued the rule as it was found to have existed under the proprietary government.

By the common law, fresh-water rivers do not come within the category of navigable rivers, and the riparian owners had a right to all the islands in the river, "ad medium filum aquæ." But such has never been the law in Pennsylvania. In the case of Carson v. Blazer, (2 Binney, 473,) this peculiarity of the traditionary law of Pennsylvania, differing from the common law of England, was first recognized by judicial authority. The late Chief Justice Tilghman, speaking of the proprietary, says: "No doubt he retained the entire right to the river, and of everything in the river, in order that he might make such use of it as would be most conducive to the public benefit." And again, in Shrunk v. The Schuylkill Nav. Co., (14 S. and R. 79,) he remarks: "These islands have never been open to applicants under the common terms of office, either under the proprietary or State government," and refers with approbation to the case of Hunter v. Howard, (10 S. and R. 243,) which decides that, "from the first settlement of the country, islands in the great rivers of Pennsylvania, under the provisional government, were never subjects of appropriation, either by office right or settlement." This doctrine has continued to be recognized as settled law in Pennsylvania for half a century. See Fisher v. Carter, (1 Wallace, p. 69;) Johns v. Davidson, (4 Harris, 516.) It is treated as such in the learned work of Judge Sergeant on the Land Laws of Pennsylvania, p. 193. Nor can any case be found in the reports or traditions of the bar, which varies or contradicts this uniform course of decision. It is through these sources alone that this court must seek for a solution of the question; and finding the law so established by the tribunals of the State, we are bound to acquiesce in and follow their decisions.

The decree of the circuit court is therefore affirmed, with costs.

Thompson v. Selden.

GILBERT L. THOMPSON, Plaintiff in Error, v. WILLIAM SELDEN and

others.

20 H. 194.

PRACTICE AS TO PRODUCING BOOKS-CONTINUANCE.

1. Under the fifteenth section of the act of 1789, a notice to a party to produce books does not incur the judgment of nonsuit, unless a motion is made and an order of the court on that motion, for their production, which is disobeyed. It is not error, therefore, to refuse to order a nonsuit where no such motion has been made, though notice to produce has been given.

2. This court does not review the action of the inferior courts in granting or refusing a continuance.

WRIT of error from the circuit court for the District of Columbia. The case is sufficiently stated in the opinion.

Mr. Tyson, for plaintiff in error.

Messrs. Magruder, Davidge, Ingle, and Chilton, for defendants.

[* 197]

*Mr. Chief Justice TANEY delivered the opinion of the court.

This is a writ of error to the circuit court for the District of Columbia, upon a judgment rendered in that court in favor of the defendants in error, in a suit brought by them upon certain promissory notes set forth in the pleadings.

Some time before the trial, a notice was served on Selden, Withers & Co., the defendants in error, to produce certain books and papers mentioned in the notice; and that, unless they were produced at the trial, the plaintiff in error would move the court for a nonsuit, or for a like judgment as in cases of nonsuit; and an affidavit was made by the plaintiff in error, that the books and papers specified were necessary for his defense. Those applications and motions. were afterwards repeated before the trial and at the trial, upon further affidavits and notices to the same effect, which it is not necessary here to set forth.

They were opposed by Selden, Withers & Co., who were the plaintiffs in that court, and the motions were all overruled by the court. The exception does not state on what ground they were opposed, nor upon what ground they were overruled; and as far as the case is disclosed in the record, we see nothing in the rulings of the court to impeach its judgment.

The fifteenth section of the judiciary act of 1789, under which these proceedings were had, authorizes the court, upon motion and due notice thereof, to require a party to produce books or writ

Dean v. Mason.

ings in his possession or power, which contain evidence * pertinent to the issue, in cases and under circumstances [*198] where they might be compelled to produce the same by

the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order, it shall be lawful for the court, on motion, to give the like judgment for the defendant as in cases of nonsuit.

The transcript does not show that any motion was made for an order upon the plaintiff to produce the books and papers mentioned in the notice. It shows that a motion was made to render a judgment of nonsuit for not complying with the notice, and also a motion for a continuance of the case. But the court is not authorized by the act of congress to enter a judgment of nonsuit upon the failure of the party to comply with the notice. The notice is merely a preliminary proceeding, to enable the party to bring before the court the motion for the order to produce; and when that motion is made, the party called on has a right to be heard, and he is not bound to produce the books and papers called for, until the court shall order him to produce them, and is in no default unless he refuses or neglects to obey the order. The court were therefore right in refusing to enter the judgment, when no order had been moved for or granted.

And as regards the motion to continue the case, it has often been decided by this court that the refusal of an inferior court to continue a case to another term cannot be assigned for error here. Justice requires that the granting or refusal of a continuance should be left to the sound judicial discretion of the court where the motion is made, and where all of the circumstances connected with it, and proper to be considered, can readily be brought before the court. We think, therefore, that neither of the objections taken here can be sustained, and that the judgment of the circuit court must be affirmed.

WILLIAM B. DEAN, Appellant, v. NATHAN MASON, et al.

20 H. 198.

PATENT RIGHTS-RULE OF DAMAGES FOR INFRINGEMENTS-PRACTICE IN CHANCERY. 1. In chancery the rule is to allow plaintiffs the profits received from the unlawful use of the invention, and not such as might have been made with reasonable diligence. 2. The refusal of a court to allow an answer to be filed after a decree pro confesso, and referred to a master, is in the discretion of the court below, and is not ground of review here.