Opinion by
Henderson, J.,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 *343not the least spark of official authority for the second sale of the land.” The defendant, although possessing the title of Hoyle to the Deeter tract, acquired nothing by virtue of the patent to Hoyle in 1856 for land long before warranted to other persons.
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. *344There was a small clearing on the Hammond tract along a short stretch of the west line, but it was not shown that any person connected with the Hoyle land had made the clearing or that it was made with the intention of occupying it as a part of that farm. The evidence in regard to the cutting of fence posts and other timber was not sufficient to show any sort of occupancy. The Hammond tract was unimproved land and the cutting of trees occasionally did not tend to show such occupancy as would make title. There was evidence that from three to five acres of the land had been inclosed by a wire fence in connection with the Hoyle farm, but this fence had not existed for a sufficient length of time to support the claim. The uncontradicted evidence shows that it had only been there for fifteen or eighteen years. If effect were to be given to such evidence of occupancy, an owner of unimproved land would need to maintain a patrol to report any trespass to avoid the liability that he might awake to the fact that such unlawful interferences had deprived him of his title.
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 *345there cited in support of that position. The action of the trial judge followed the law as there declared and is free from criticism. There was abundant evidence that plaintiffs’ property was wild land. Whether the defendant was in a bona fide occupancy of any part of the land on which the trespass was committed was a question of fact which must have been submitted to the jury under the evidence. Whether the land included within the wire fence was intentionally so included as a part of the Hammond tract, and whether trees were cut east of that fence, the jury could best determine under the testimony. On both the questions of fact the decision was against the defendant, and that decision we must regard as conclusive upon the case as presented. The case was reversed at the former argument on the first three assignments of error, which relate to the actual possession of the land at the time of the trespass by Ellen L. Kadison, and the action of the court in giving binding instructions for the defendant. The question of the sufficiency of the evidence to establish the claim by adverse possession was not discussed and disposed of, but on consideration of the testimony now brought up, we think it evident that the trial judge was justified in the instruction on that subject. After a careful consideration of the argument of the learned counsel for the appellant, we are not persuaded that any error was committed on the trial of the case which requires a reversal. |
Judgment affirmed.