The opinion of the court below was asked and delivered on five points stated in the record. On *79four of these opinions, there is no question, as both parties acquiesce in them. The one which remains for this court decide on, is, whether on the matters given in evidence, the plaintiff’s action was barred by the act of limitations.
The defendant gave in evidence sundry acts of ownership exercised on the land in dispute, which is principally woodland, from the year 1783 to the time of bringing this suit. And it appears that on the 17th of June 1808, an application was entered in the land office, for a warrant in the name of Ruth Thomas under whom the defendant claims, for talcing up this land, on which a survey was afterwards made. The application stated that Ruth Thomas claimed under an improvement commenced in the year 1783. The plaintiff claimed under a warrant issued the 29th of May 1742, to Stamper Bland, Elias Bland and John Bland, in right of Francis Stamper, which was laid and surveyed on the land in dispute, the 31st of December 1805. Taking the matter in the light most favourable to the defendant, the right under which he claims commenced in the year 1783. But what kind of right was it? Has the possession from that time been adverse to the commonwealth, so as to bar the commonwealth or its grantee? Surely not. If that kind of title bars the commonwealth by the act of limitations, then all persons who have taken possession of vacant land, may acquire title without payiug a cent; for if they are protected by the act of limitations, they have no need of obtaining a patent, The woodland in dispute was adjoining the cleared plantation of Ruth Thomas-, and if she, or others who owned the cleared land, had thought proper to trespass on the wmodland for fifty years without paying any consideration, or making any application to the land office, what remedy would there be at the end of the fifty years to compel payment of the usual purchase money, with interest from the time of the first cutting? I know of none, because it might be said that there never was any intention of purchasing. The most that can be said of this kind of title is, that it gives a right of preemption, in case the possessor thinks proper to complete the purchase; and that the possession in the mean time is not adverse to, but under the commonwealth. This I say, is the most that can be said of such a title, for I am not giving any opinion on it, but only stating *80the argument in the strongest point of view for the defendant. Whether a right of pre-emption existed under the circumstances of this case, we are not now to determine. The point is, whether the plaintiff’s claim is barred by the act of limitations? We cannot say that it is, without saying at the same time, that the possession of the defendant and those under whom he claims, was for twenty-one years before the commencement of this ejectment, exclusive of, and adverse to the commonwealth, and to the plaintiff who claims under the commonwealth. This I cannot say, for the reasons which I have given, and for others which might be given, founded on the peculiar and pre-eminent rights of the commonwealth. I am therefore of opinion, that the plaintiff was not barred by the act of limitations, and consequently that the judgment should be reversed, and a venire facias de novo be awarded.