55 Pa. Super. 335 | Pa. Super. Ct. | 1913
Opinion by
At the trial in the court below two questions were presented relating to the title of the property and two affecting the right of the plaintiffs to maintain an action of trespass. The plaintiffs claim through a warrant issued to Nathan Hammond in 1794. The defendants’ paper title was based on a patent issued to John Hoyle in 1856, who was at that time the owner of the Deeter tract immediately south of that part of the Hammond tract which is the subject of litigation. But it was clearly shown that the Hoyle tract was laid on land long before warranted, title to which was outstanding in the heirs or grantees of the warrantees. There was, therefore, no land to which the Hoyle patent could give a title, at least so far as the Hammond tract is concerned, and it is not seriously pretended that the defendant acquired any title through the Hoyle patent, which could be successfully asserted in this action. There remained, therefore, only the second source of title — that the occupancy of the defendant and her predecessors in title had vested in her a valid title by adverse possession. The learned trial judge instructed the jury that no title passed to any of the land under the Hoyle patent, and that the evidence offered to support the title by adverse possession was insufficient for that purpose. This instruction was in accordance with numerous authorities. The issuing of the patent to Hoyle could not have the effect to take appropriated land from those to whom it belonged, and give it to the patentee. It was said in Hole v. Rittenhouse, 25 Pa. 491, that “The Commonwealth and her agents and vendees are bound to take notice of a valid survey marked upon the ground and returned into the land office. The parties who attempt to violate the right of property, by making a second and illegal survey, deserve no favorable consideration whatever. To call a survey thus made, an official act, because it was made by a deputy-surveyor, is an abuse of terms. There is
The evidence on the subject of adverse possession fell far short of that required to establish a good title. To make such title effective, it is necessary that there be an actual entry on the land of the rightful owner and an actual, visible possession taken of some part of it. Residence and possession with cultivation on adjoining land, with boundaries including the valid title of another, will not give actual possession of the latter, although accompanied by the ordinary use of it as woodland, in connection with the part resided upon or cultivated. To maintain an actual possession to woodland as such, it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belongs: Hole v. Rittenhouse, 37 Pa. 116; Olewine v. Messmore, 128 Pa. 470. Actual possession may be taken by inclosing and cultivating, without residence or by residence without cultivation, under a bona fide claim where there is a designation of the boundaries with the ordinary use of the woodland. This possession accomplishes an ouster, and is entirely different from the occasional or temporary use of the land without an intention to permanently cultivate or reside thereon or use it in some other manner consistent with the condition of the property. There is no evidence of improvement and cultivation of that part of the Hammond tract covered by the Hoyle patent. Much evidence was introduced showing cultivation of the Hoyle farm, but this had no relation to the question in controversy. The buildings on that farm were on the Deeter tract, the title to which was in nowise involved. The cultivation on the other part of the farm was not on the Hammond tract, nor was the limestone quarry which was operated for a time.
On the question of the right of the plaintiffs to maintain the action the defendant contended that they had not such a possession as would enable them to prosecute an action of trespass, and that the defendant was in possession of the locus in quo, and, therefore, not liable in that action. The evidence on these features of the case was presented to the jury in a charge which we regard as clear and adequate. The plaintiffs contended that the land on which the timber was cut was unimproved and that they having the title were in constructive possession. When this case was here on a former appeal, 51 Pa. Superior Ct. 133, we held, in an opinion by our Brother Morrison, that a title to unimproved land gives to the owner a constructive possession so that he can maintain an action of trespass, if there was not an actual adverse possession clearly made out on the part of the defendant, and many authorities are
Judgment affirmed.