77 Pa. 62 | Pa. | 1875
delivered the opinion of the court,
A defect ran through all of the defendants’ points, which necessarily called forth a negative answer from the court below. In none was an actual pedis possessio alleged as within the disputed territory, and in all the actual possession by clearing, fencing and cultivating, was averred only as within the defendants’ survey. This was no fault of counsel, the points being drawn according to the fact as shown in the evidence, that the actual possession of the defendants was south of the boundary line of donation lot No. 1541, as claimed to by the plaintiff, and to which he recovered. The only evidence of possession by the defendants north of this line and on lot No. 1541, was that of cutting timber, and the recovery of the McArthurs against Jacob Welker in ejectment of 1846, and Welker’s abandonment after the recovery, together with McArthur’s subsequent taking possession by habere facias in 1854. The effect of this absence of an actual possession within the lines of No. 1541, was to prevent that tract from becoming seated, and also to prevent the running of the Statute of Limitations in favor of the defendants. It is very clear that the sale for taxes of donation lot No. 1541 as unseated, was not impaired by the fact that McArthur’s tract was seated, unless McArthur had such an actual
The sale of No. 1541 for taxes, and the defence under the Statute of Limitations, both imply that the land in controversy lay within the true southern boundary of 1541. For if-it were not so, McArthur would hold the interference by virtue of his own better title. The jury have found that the true boundary of 1541 includes the interference as claimed by the plaintiff. Hence the sale for taxes gave a good title to the plaintiff, Cyrus Kitchen.
How, then, stood the case under the Statute of Limitations ? The recovery of the land within the interfering surveys by the McArthurs against Jacob Welker in the ejectment of 1846, with the abandonment of it by Welker after the recovery, would have been a strong fact in the case, had it appeared that Welker was the owner of donation lot No. 1541. Then a recovery against the owner of 1541 might plausibly be argued to confer a legal seisin, which, followed by the payment of taxes and cutting of timber, would be evidence of an ouster of the owner of 1541 from the interference, without taking an actual pedis possessio within the same. But there was no evidence of Welker’s ownership of that part of 1541, and his abandonment of possession after the recovery in ejectment, would in no wise affect the true owner of 1541, who was no party to the proceeding, and had done no act to amount to a confession of ouster. He could be affected by such act only as would in any case compel him to take notice of the possession of a disseisor. This would be nothing less than an actual possession within the lines of his tract, accompanied with such use of the woodland within the interference as farmers usually make of their own woodland, followed by a continued notorious and visible possession, undisturbed by him for twenty-one years. That there must be an actual or pedis possessio within the interference, to give title under the Statute of Limitations, was settled finally in the case of Hole v. Rittenhouse, 1 Casey 491, reaffirmed in Hole v. Rittenhouse, 1 Wright 116. The same doctrine was asserted in Ament’s Ex. v. Wolf, 9 Casey 331, and repeated in Ewing v. Alcorn, 4 Wright 492; O’ Hara v. Richardson, 10 Wright 386, and in subsequent cases. This is now conceded the settled doctrine, and certainly is the only one just to both parties. The learned judge below doubtless decided this case in recollection of his own opinion in Ament’s Ex. v. Wolf, supra. Yet the language of Woodward, J., in the second opinion in the same case, is now relied upon to give effect to a doctrine as to the
The changes in the doctrine of possession of unenclosed woodland under the Statute of Limitations, within the last half century, are interesting and instructive. The great body of western lands was held by eastern capitalists, chiefly citizens of Philadelphia. Miller v. Shaw, 7 S. & R. 129, decided in 1821, settled in the most
Royer v. Benlow, 10 S. & R. 303, decided in 1823, maintained the docrine of Miller v. Shaw, reversing the court below for asserting the doctrine of the constructive possession of the woodland, which is now regarded as settled law. But in that case, Chief Justice Tilghman conceded in argument that there might be a confession of ouster by the owner himself through his act, which would thereby extend the possession of the trespasser constructively. This was the root from which a later doctrine sprang, after the death of Chief Justice Tilghman and Justice Duncan, and when Huston and Kennedy were seated on the new bench as judges. McCall v. Neeley, 3 Watts 69, decided in 1834, was the first well matured fruit of this root in Royer v. Benlow. It was a case where the disseisor entered on the whole tract, claiming by its boundaries and paying taxes for the whole, the owner suffering this to be done for twenty-one years. The same doctrine was reaffirmed in Criswell v. Altemus, 7 Watts 566, decided in 1838. In the next year, a further step was taken in Lawrence v. Hunter, 9 Watts 64, taken up and argued by myself, in which it was held that an official survey procured by the settler, to be made by the deputy surveyor under the Act of 3d April 1792, of a part of a warranted tract was efficacious to extend the settler’s possession by construction to the lines of' his survey. After this case, the doctrine of constructive possession continued to advance in favor until it ran wild in Waggoner v. Hastings, 5 Barr 300; Seigle v. Louderbach, 5 Barr 490, and Kite v. Brown, 5 Barr 291, which were overruled in Hole v. Rittenhouse, 1 Casey 491. In his opinion in this case, Chief Justice Lewis seeks to qualify rather than overrule Kite v. Brown. Yet in its principle, as to the constructive possession, it is clearly overruled.
As to a mere interference of surveys, the first case in which the doctrine of constructive possession of the unenclosed woodland was clearly and effectively applied, was Thompson v. Milford, 7 Watts 442, the principle of which is now the law as settled in numerous cases. In O’ Hara v. Richardson, already referred to, both parties
As a result of the cases we think the formal act or taking possession of the land under the ejectment against Welker, a stranger to the title of 1541, and the subsequent entries to cut timber within the interference, unaccompanied by any ostensible possession, neither seated donation lot No. 1541, nor conferred a constructive possession upon the McArthurs within the interference, such as would protect them under the Statute of Limitations.
The judgment is therefore affirmed.