The opinion of tho court was delivered, by
Agnew, J.At the trial the defendant attempted to defeat the plaintiff’s action on the ground that he was in the actual possession of the locus in.quo. The judge denied the defence, stating that Marvin, under whom he claimed, had improved upon appropriated land, and that the woodland where the trespass was committed being vacant land of the Commonwealth, his possession could not be extended over it, by claiming to a certain boundary, and using the land for wood and making sugar. In argument here it was denied that Marvin was upon appropriated land ; but the fact clearly appears in the testimony of Benedict, Marvin and Boyle, that he was by contract upon one of the Drinker or Biddle tracts, as the lands there are called. As remarked by Coulter, J., in Henry v. Henry, 5 Barr 249, many things pass on the trial of a cause as admitted, and we cannot impute a wilful misstatement to the judge below, in the absence of any fact disclosed by the evidence to impugn or contradict what he has stated. The fact being as thus understood, the judge was correct in his *409conclusion. It was said by C. J. Tilgbman, in Graham v. Moore, 4 S. & R. 471, as early as the year 1818, that if the proprietor of a surveyed tract passes over his line and cuts wood upon the vacant land of the Commonwealth, so far from acquiring a right to the vacant land, he is to be considered a trespasser. Of annual entries to tap sugar-trees and boil the sap, it was said, in Adams v. Robinson, 6 Barr 272, that they constitute rather a succession of trespasses than an actual permanent occupancy of the ground. It is only when such acts are done within the boundaries of a man’s own tract, whether claimed by settlement or survey, or by an elder or a junior title, they can be used as the evidence of such possession as farmers usually take of their woodland: 6 Harris 377; 8 Id. 163. The locus in quo being vacant land, and not in the actual possession of the defendant, his defence failed. According to numerous decisions, he could acquire no title by making and claiming to a boundary taking in the adjoining vacant land of the Commonwealth. It was decided in Overton v. Gibson, 2 Watts 384, that a settler who makes his improvement by mistake or otherwise on land previously appropriated obtains no title .by settlement to the adjoining tract over which his en.closure extends. In that case, the settler had also taken out á warrant as well as extended his improvements over the part claimed. This has been followed in Adams v. Jackson, 4 W. & S. 69; Henry v. Henry, 5 Barr 247; Smith v. Beck, 1 Casey 106; and Lineweaver v. Crawford, 2 Id. 419. The reasons are stated by Rogers, J., in Overton v. Gibson, and grow out of the Act of 30th December 1786, and the personal residence which is the essential element of a settlement. The act defines it to be an actual personal resident settlement with the manifest intention of making it (the land) a place of abode and the means of supporting a family continued from time to time, unless interrupted by the enemy or going into the military service of the country during the war. The purpose of the Commonwealth was to dra,w population to her vacant land and build up the interests of the state. He who plants himself upon land already taken up, does the state no service in this respect, and he will not be permitted to thumb over her adjoining vacant lands to the exclusion of those who would fulfil her purpose. He cannot make title to himself, either by running lines or building fences, and when title is granted by the Commonwealth to another, that title draws to itself a constructive possession which, according to many cases, enables the owner of it to maintain trespass against the intruder who enters to cut timber or do other acts of wrong. • The judgment must be affirmed.