I deem it unnecessary to take up the errors assigned in detail: The material grounds of defence, and the manner the court ought to have submitted the case to the jury, are here explained. Mann, the plaintiff below, acquired title to the warrant, survey, and patent of Warder by deed, dated the 31st October, 1803, from the owners. The exceptions to the admission of the paper title of Mann have been abandoned in this court. When he made the purchase in 1803, from Jeremiah Warder and others, it is clear that he had the legal title of the commonwealth to the lands in question.
The defendants below, as heirs of Nathaniel Fitch, who had purchased the improvement of David Daily, jun., who had entered *506on the land as a settler, and intruded as early as 1801 or 1802; built a house and some out-houses, cleared some land, raised grain, and paid taxes up to 1816, when he sold to Fitch, who entered upon the premises, and continued until death, in 1840. This ejectment was instituted in 1845. Fitch’s whole claim, as shown by the diagram, was 137 acres and 47 perches; nearly all of this was within the Warder survey. His house was a few feet out of the. Warder line. His spring-house, part of the orchard, which was planted shortly after Daily settled, as well as the greater part of his cultivated ground, was within that survey.
Neither Daily nor Fitch had a survey. I agree there was some contradiction in the evidence, and I do not pretend to state it minutely, but to show that there was evidence on the part of the defendants that ought to have been submitted to the jury. Armstrong proved that ho moved on the land as the tenant of Fitch in 1816, after Daily left it, and occupied the place for seven years. The orchard was hearing when he went there — Fitch showed him the lines running down to the birch corner; he claimed part of the swamp, he claimed to the certified Connecticut town lots, and on the other side cleared to Oliphant’s, in the neighbourhood of two hundred acres.
Post proved that Daily got married forty-six years ago, and then moved on the land with his family, and commenced clearing and planted an orchard. He claimed to the town lines, and on the other side to the defendant’s tract. He forbid people from cutting timber. In short, the evidence proves that the place was used by Daily and Fitch, and the tenant of Fitch, as other farmers used their farms. The boundaries are well ascertained either by Pennsylvania or Connecticut titles which interfered with the survey of Warder. A number of witnesses were examined on both sides as to the extent of the claim and the improvement. I have only brought the evidence so far into view as to show that the case should have been put to the jury to inquire whether there had been an actual, adverse, and unbroken possession of twenty-one years, of that part of the Warder survey which was within the claim of Daily and Fitch. An intruder who enters upon land which is unimproved, and claims to certain natural or artificial boundaries, plain and visible (as in this case), is protected by the purchase of 1754 and 1768, as if he had had his claim run round and marked by a surveyor, when his possession is unbroken, and he pays his taxes for the land he claims.
The course of decision on this subject will be found in Meade v. *507Shaw, Barlow v. Roger, Reed v. Goodyear, Jones v. Parke, and McCall v. Neely, and the whole subject fully delineated by our late Justice Kennedy, in Criswell v. Altemus, 7 Watts, 565.
The learned judge fell into error in this case when he instructed the jury that “ there was no colour of title which defined the extent of the claim, either of Daily or Fitch, as the residence was not on the land, and neither had survey or location of their claim.” Daily, who moved in the woods in 1801 or 1802, claimed a vicinage to that improvement, wdiich was the land in question. The line of the Warder survey happening to run close to his house, his improvements being on both sides of that line, and his improvement and settlement being continued and unbroken, that line would not destroy his title.
It is not the case of a man in possession under title of his own, and clearing over. The cause ought to have been put to the jury as in Criswell v. Altemus. The jury found an unbroken possession and continued claim of the ground in question for twenty-one years, adverse to Mann: the statute was a title, and prevented a recovery by the plaintiffs.
Judge Kennedy, after a review of all the decisions, has, with his usual clearness and accuracy, informed us that a person who enters without title, or colour of it, upon an unseated tract of land held by another, under a title derived from the commonwealth, as an intruder, erects buildings thereon, suitable for the accommodation of his family, which he removes to the same, making it his place of abode and occupying the whole of the survey or tract, as the owner thereof, by clearing and fencing more or less of it, from year to year, as suits his ability or convenience, for the purpose of tillage, meadow pasture — or using the woodland thereof at the same time for the ordinary purposes that such part of a tract is usually used and occupied for, in the section of the state where it lies, returning also the whole of the tract as his own to the assessors, and paying the taxes assessed thereon; acquires thereby an actual, exclusive, and adverse possession of the whole tract or survey, including the woodland, as well as of that which he has cleared and enclosed, whereby the owner was ousted: and if the latter does not enter or bring his action, within twenty-one years from the time at which the intruder first entered and took possession, he will be barred of his right thereto by the statutes of limitations. But in taking possession of the land, or if afterwards within the twenty-one years the intruder declares or acknowledges that he is taking or holding the possession of the land for the owners thereof, it cannot *508be deemed adverse, and consequently the statute will form no bar to the owner’s recovery of the land: Criswell v. Altemus, 7 Watts, 566. I hold these principles to be sacred — the true doctrine. Apply them to the case before us: was not Mann ousted of all the land claimed by the defendant for more than twenty-one years ? This was a fact for the jury, which I apprehend they would have found but little difficulty to determine under the evidence.
Judgment reversed, and a venire de novo awarded.