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 *68possession within the lines of 1641 as would make it a seated tract also. This must be by an actual entry upon No. 1541 and residing upon it, or by clearing and fencing it, or by cultivation upon it, so as to arrest the attention of the assessor and require him to return the tract as seated. There was not in this case even a slight clearing over to bring into play the doctrine of accidental trespass, or the curative provision of the Act of 12th April 1842, 1 Bright. Purd. 1443, pl‘. 7,
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 *69constructive possession of the woodland in this case, unsupported by the facts of that case or of any other known to me. But strong as was the language of Justice Woodward in that opinion to support the possession of the woodland as an actual possession, when aided by such acts of ownership over it as farmers usually exercise over their own woodland, his entire argument is founded on the actual possession of five acres cleared, cultivated and occupied by the disseisor within the interference. Without that nucleus around which such acts as the occasional cutting of timber could gather, and constitute a part of the actual possession, the argument would be nothing less than a piece of intellectual magic, to convert the merest constructive possession of woodland into a seeming pedis possessio ; but that the learned judge never taught such a doctrine, is conclusively proved by his opinion in the second case of Hole v. Rittenhouse, 1 Wright 116. It is true that Ament’s Executors v. Wolf, did decide a new point under the Statute of Limitations, but it was not that there is an actual possession of woodland, unattended by any visible act of clearing, fencing, cultivating or residing. Previous cases had decided only this, that the constructive possession of woodland when fastened upon an actual possession by clearing, fencing or cultivating within the interference, would take place only when the owner of the survey interfered with was- not in possession within his survey. In Ament’s Executor v. Wolf, it was stoutly contended that when both owners are in actual possession of their respective tracts, the law casts the possession of the woodland within the interference upon the true owner of the survey. But it was there held against the dissent of Justice Thompson, that an actual possession within the interference, accompanied by an exclusive use of the unenclosed woodland, such as is customary among farmers, uninterrupted by any act of the true owner of the survey, is evidence from which an ouster of the true owner from the woodland will be inferred so as to give effect to the Statute of Limitations. Justice Woodward calls this possession of the woodland an actual possession. But be it actual or only constructive, the legal effect is precisely the same. To be effective, this possession of woodland must be exclusive, as was then held and also subsequently shown: O’Hara v. Richardson, supra. For if the owner of the true survey also cut timber within the interference, it becomes a case of mixed possession at least, and there is no room for Justice Woodward’s illustration from a law of natural philosophy, that two magnitudes cannot at the same time occupy the space.
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 *70absolute terms that under no pretence could a settler on purchased lands obtain title by the statute beyond his actual possession so held for twenty-one years. C. J. Tilghman opened his opinion with a reference to these purchased lands, which he called “ Our Back Lands.” The principle of'that decision is found in the first sentence of Justice Gibson’s opinion: “It is a well-established principle (he says) both in England and our sister states, that there can be no constructive possession in favor of a wrongdoer.” Having practised under the law of that case, I remember well the hard fate of the early settlers, who by its operation were cut off from their valuable improvements and confined to the small field, often two, three or four acres, which had been cleared twenty-one years.
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 *71were in possession of their respective tracts, and the peculiarity was that each entered and cut timber within the interference. Hence, though the owner of the junior survey was in actual possession of part of the interference, it was held that the entry of the owner of the elder survey and cutting of timber, were acts of ownership, preventing such a constructive possession of the unenclosed woodland as would be a constructive ouster of the true owner to give title under the Statute of Limitations.
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.