The opinion of the Court was delivered by
Woodward, J.— We thought the only question in this cause was effectually decided when it was here before, but the counsel have brought it up again and have appealed to us very earnestly to reverse our former decision. We have no right to complain of this, for it is no more than the losing party in an ejectment has a right to do. Besides, if our former judgment were sound it will bear to be reviewed, and if it were not sound it is well for us to have' an opportunity to correct it in the very case in which it was pronounced.
It is the case of clashing surveys. The interference is about forty acres. Both parties have been long in the actual possession of their respective surveys, but the junior warrant-holder cleared and cultivated a field of about five acres within the interference, and has had possession of that and uninterrupted use of the rest of the interference, as woodland adjacent to farms is commonly enjoyed, for more than twenty-one years before suit brought. The question is, whether the Statute of Limitations will protect him. That he has acquired a right to so much as he enclosed and cultivated is not denied, but it is denied that he has acquired title to the woodland.
Judge Lowrie’s opinion, when the case was here before, adverted to the early decisions in reference to the extent of intruder’s claims under the Statute of Limitations, and contrasted them with the later cases which have more carefully and clearly defined what is actual occupancy, and these he declared do most certainly decide that such a use as the defendant made of the woodland, in connection with his improved land, is actual and not constructive possession.
The cases referred to, especially Judge Kennedy’s elaborate opinions in Thompson v. Milford, 7 W. 443; Cresswell v. Altemus, Ib. 580; and Lawrence v. Hunter, 9 W. 77, will be found *525fully to justify the above conclusion. In Alden v. Grove, 6 H. 388, the result of the authoritiés was stated in these words: “ Since the case of Cresswell v. Altemus, and those which follow in its wake, it is vain to deny that the intruder’s use of woodland, as woodland is ordinarily used, is, in the eye of the law, actual possession of it, as truly and effectually for the purpose of the Statute of Limitations, as his cultivation of fields is actual possession of them.”
This is very definite language, and unless its force is to be greatly abated, it leads irresistibly to the conclusion that the enclosed field in this interference was no more an actual possession than the woodland, used as it is admitted it was used. But if the intruder, or younger warrantee, had actual possession of the woodland of this interference, the elder warrantee was as surely ousted as it is true that two magnitudes cannot at the same time occupy the same space. Both could not have actual and adverse possession at the same time, and since the law has defined such acts as the younger warrantee exercised over the woodland to be actual possession, the title after twenty-one years must be considered as divested from the true owner and transferred to the intruder.
Counsel are not unaware of the strong terms in which such possession of woodland has been defined; but they say the rule has been predicated only of unoccupied tracts, whereof the rightful owner had but the constructive possession, and has never been applied to the woodland of a tract whereon the owner was actually resident. I have gone over all the cases in“the books, and I believe this position of counsel to be correctly stated. In every case in which the customary use of adjacent woodland has been treated as actual possession, the original owner of the tract has not had the actual possessio pedis of any part óf his survey. This must be admitted; but what of it? The law draws the possession of unoccupied land to the title, and when the courts define what kind of actual possession is necessary to oust the constructive possession of the owner, they are defining not a fiction but a fact — an actual, visible and tangible possession. Nothing short of such a possession shall oust the imaginary possession which the law imputes to the absent owner. But the force of the fact is not affected by the circumstance that he is a non-resident owner, or, if affected at all by that circumstance, it lessens it as compared with the force of the same'fact when urged against a resident owner. An entry on the woodland of a non-resident is an act of‘less direct hostility than an entry on the woodland, of a man who is at hand to repel it. ' In the one case it may fairly be presumed he is ignorant of the trespass — in the other he is defied to his very teeth. When repeated, and continued so long as to amount to actual possession, as against the non-resident, *526much more must it be accounted actual possession against him who has a chance to know that his rights are endangered, and if not asserted in due time, will be lost.
Whilst, therefore, it is true that this peculiar kind of possession of woodland has been set up, in all the adjudged cases, against non-resident owners, it seems to us that it applies á fortiori to resident owners. If it is a good defence against a title which may be ignorant of its danger, it is better against a title that knows it is questioned. A rule of law that should be so administered as to sacrifice the absent, but to protect him who was on the spot to protect himself, would not be remarkable for either wisdom or equity.
In the late excellent work of Mr. Price, on Limitations and Liens, at page 107, the result of a large number of authorities is stated in these words: “ In case of interfering surveys and of actual possession by both parties of their respective tracts or parts of them, the law adjudges the possession of the unenclosed part of the interference to be in him who has the best right; and the statute does not operate.” This is true, if adjacent woodland used as farmers ordinarily use such land, be not considered as “ unenclosed,” but otherwise it is not strictly accurate. Where owners of conflicting surveys are both in actual possession within their respective lines, but neither of them within the interference, the law undoubtedly adjudges the possession of the interference to be in him who had the right, and when the other enters upon the interference, he acquires title, under the statute, to no more than he actually occupies. All beyond his actual occupancy is still in the possession of him who has the right; but here comes back the question, what is actual occupancy? We hold that enclosing and cultivating part of the interference, and using the residue as adjacent woodland is customarily enjoyed, is actual possession of the whole. The possession which the law imputed to the real owner, be it actual or constructive, is ousted by such entry and occupancy, and after the statutory period the title is changed. The authorities cited by Mr. Price, when taken in connection with those which define the occupancy of woodland, will not be found inconsistent with this ruling.
Undoubtedly this woodland species of occupancy is of late growth in our law, but that it is well-rooted in reason and necessity, was so fully proved by the late Judge Kennedy, in the cases to which I have referred, that I am under no necessity to enter upon its justification. It has been found a salutary construction of the Statute of Limitations, and notwithstanding the able argument of counsel, we think this a proper case to which to apply it.
The judgment is accordingly afErmed.
*527Mr. Justice Thompson dissented, and read the following opinion:
The controversy in this case arises out of an interference of surveys. The plaintiff claims under an elder warrant and suryey. The defendant under a junior warrant and survey never returned, including about forty acres of the plaintiff’s survey, which he claims to hold by the Statute of Limitations.
In 1799 or 1800, the landlord of the defendant, the owner of the adjoining tract to that of the plaintiff, procured this interfering survey to be made, on the junior warrant, and cleared and cultivated within those lines about five acres, and continuously so occupied the same for a period of more than twenty-one years before suit brought.
Sixteen, or at most seventeen years after the claimant of this interference of forty acres entered into possession and made his improvement of five acres, Moorhead, under whom the plaintiff claims, entered by his tenant into possession of his tract, for which he had obtained a patent in 1797, upon his warrant and survey already mentioned, erected buildings, resided on it, clearing and cultivating land until 1830, when he sold it to the present plaintiff, who took immediate possession, and continued the residence and cultivation upon it ever - since. In 1852, he brought this suit to recover the land in controversy. He claims now that by virtue of the title and entry into actual possession of the original owner, and continued by himself by clearing and cultivating land as already mentioned, and using the woodland as farmers usually do, for firewood, fences, &c., that the statute ceased to run in favor of the defendant from the moment of such entry and occupancy; andas twenty-one years had not run against his title at that time, his right of recovery is not affected by the Statute of Limitations That he and those under whom he claims weye in actual possession of their entire tract up to its original boundaries.
On the other hand, the defendant claims that he was in the actual possession of all the land within the interference, by reason of clearing and cultivating five acres, and using the woodland for the incidental purposes connected with tk^e possession.
Thus for four or perhaps five years before the statute had interposed a bar to a recovery, or conferred title on the defendant, both parties were in possession, and claiming possession to their respective boundaries by the same signs and indices of possession, viz: actual occupancy of part, and the use of the woodland as farmers usually db; the one an owner under a legal title derived from the Commonwealth — 4he other without title, a mere,intruder.
It may as well be stated here, that the survey under, and to which the defendant claims, was unauthorized and void as such, *528it being made on land already legally appropriated — tbe act of marking the trees, which constituted it, being a trespass — differing not a whit in character from a line made by the claimant himself or any other unauthorized person.
It may also be admitted that had the defendant’s possession continued, as it had existed before the entry of the plaintiff, for the full period of twenty-one years, without possession being taken by the legal owner, the statute would have operated as a bar. At an early period in our land controversies, it was held that nothing but an actual pedis possessio, by cultivation, or enclosure and cultivation, would oust the legal seisin of the owner. In metaphoric language, the intruder could only hold the land he stood upon, unless he entered by color of title. Clugage v. Duncan, 1 S. & R. 111; Miller v. Shaw, 7 S. & R., and other cases. Afterwards, and by degrees, this doctrine was modified, and the distinction between color of title and no title at all disappeared where the entry was made as an improver, with adopted or marked boundaries. Cresswell v. Altemus, 7 W. 580; Lawrence v. Hunter, 9 W. 64.
But the doctrine stopped here, unless, in this case, we should -incite it into action by determining that both the legal and actual seisin are not sufficient to hold the intruder where the fathers and sages of the law held him, as against the legal seisin, namely, to the ground upon which he stood. No case can be found as a precedent for the doctrine, that against both title and possession he can hold more.
What effe'ct had the demarcation of boundary, unauthorized as it was, against the plaintiff’s entry under his legal title ? Or perhaps, rather, what effect had his entry under his title upon such a possession before the statute had closed in upon it ? I think it would strike most minds that it gave him, as incidental to ownership, the actual possession of all that he was not actually excluded from. That whatever was not covered by an adverse pedis possessio was drawn into his actual possession by virtue of his actual occupancy under his legal title. So thought and so said as sound a lawyer and judge as ever sat on this bench, in delivering the opinion of the whole Court in Royer v. Benlow, 10 S. & R. 300. “A man,” says Chief Justice Tilghman, in that case, “who enters into a tract of land with -title, is immediately, by construction of law, in the actual possession of the .whole tract.” As a consequence of this principle, which cannot be doubted, unless we disregard the acknowledged effect of an entry under title in tolling the Statute of Limitations, it follows that of whatever was not in actual, adverse, visible, notorious, distinct and hostile possession by the adverse claimant, the owner became immediately, by the act of entry, actually seised.
Now was this line, unauthorized as is conceded, or rather not *529denied, notice of the adverse, actual, notorious and hostile kind that settled definitions require, to constitute possession which would ripen into title against the owner also in possession ? In Hole v. Rittenhouse, 1 Casey, 491, this inquiry is answeredin clear and emphatic language by Chief Justice Lewis. “ Every argument,” observes that learned Judge, “tending to show that an unauthorized survey of land, already appropriated, does not disseise the legal owner, or give the wrong-doer actual possession, applies with equal force to a survey made without authority by a deputy surveyor, as to one made by a private individual. Both are alike unauthorized, both are alike trespasses. Neither gives actual, visible and notorious possession to the wrong-doer. Neither gives the owner notice that his right to the property is invaded.” If this doctrine is to be regarded, it proves that' it was no exclusion of the legal owner in possession from the land within the demarcation. If so, what follows ? The doctrine already cited, that “ a man who enters into a tract of land with title, is immediately, by constructional law, in the actual possession of the whole tract.”
If the owner then be in actual possession of the whole tract by virtue of title, and actual occupancy, and not bound to notice line-marks as indicating actual adverse possession, the statute not having run before his entry, and his title “not being invaded thereby,” how can it be conceived that the' intruder is in actual, adverse possession by them ? Can there be two actual, adverse possessions at the same time of the same land ? The law settles this at once by giving such a vacant possession an actual existence in the occupier with title. And this is just what was determined in Royer v. Benlow already cited. If both possessions are alike, as they were here, then the rule stated in Miller v. Shaw, 7 S. & R. 129, settles the difficulty. “ There cannot,” says Duncan, J., “ be two conflicting constructive possessions, one in the owner, and the other in the trespasser. The right always draws to it the possession, and it there remains until seized by the wrongdoer, whose possession is strictly possessio pedis.” This was said in a case in whieh legal seisin only existed, but I have already shown- that the do’ctrine is precisely the same, notwithstanding its modification, where there is actual seisin under a legal title.
I have said there could not be two actual adverse possessions of the same land at the same time, and the case cited shows that there cannot be two conflicting constructive possessions at one and the same time. When this is the apparent position of the.possessions, the effect of the rule that the legal owner is in possession under his title, is, "that he is in the actual possession of the entire tract to the exclusion of all others who have not a superior right to possession.
If this were not so, the 'owner would never be secure in his title. *530An adjoining owner might occupy and cultivate a field of one, two, or three acres, the amount is not very material, within the lines of his neighbor’s land, on which he may have at some time marked trees enough to constitute a line across his tract, and he may, too, have occasionally cut a stick or two of timber within the boundary and actually have the land assessed, and-paid the taxes on it for years without the knowledge of the legal owner ; can it be, that the owner, while regarding his dominion as perfect, and unaware of the -line, and disregarding the trespasses rather than to sue for an insignificant tort, is, in time, to lose his land under such circumstances? It cannot be, because the law has made his possession to the whole actual, excepting as to that from which he is actually ousted, by an actual, adverse, notorious, visible and hostile possession.
The case supposed, is precisely in nature and character the possession of the defendant. The extent and degree differ but little. His line was as unauthorized as if marked by himself, and his cultivation but five acres. Whether he paid taxes or not for it we do not know, but from the nature of things we may well presume that the holder of the legal title paid the taxes on his entire tract, including the land in dispute, for if he had not, it was too important an item of evidence to have been overlooked by defendant, as showing an admitted ouster from the premises and acquiesced in by the plaintiff, and would have, with the occupancy of a part, been conclusive evidence against him for the whole, after twenty-one years. So that there was no shadow of dereliction of possession, or evidence of admitted ouster against him.
To hold that as against the owner in possession by such a line, and possession within it as the defendant held, would require an entry within it to stop the running of the statute, and this would follow as a legal necessity if a title could be so obtained under the statute, is not only to disregard the reason of the thing, but the decisions of this court, and ever recognized as a rule of property on this point. In Royer v. Benlow, supra, Tilghman, C. J., says: “ The unenclosed woodland is claimed by two persons: the warrantee who has the right, and the improver who has no right. In such case the law adjudges the possession to be in him who has the right, because it cannot be in two persons claiming adversely at the same time. The cutting of wood by the improver is not exclusive of the possession, which was in the warrantee from the time of the survey. The law does not oblige the warrantee to cut wood, in order to continue his possession. He might have cut it, if he had chosen, and he is to be considered, with regard to the improver, in the same situation as if he did cut it.” This is in point, unless the doctrine is unsound that actual occupancy under a legal title does stand now just where the earlier *531cases said legal seisin alone stood, in regard to the possession of an intruder, which I think cannot be controverted.
It follows, then, as a necessary result from these principles, that the possession of the warrantee- in this case restored him to actual possession up to his entire boundary, excepting as to the five acres. It was, therefore, not necessary to make entry on the woodland within the defendant’s line, on which he had occasionally cut timber for fences and the-like, for it was in the owner by virtue of his legal title and accompanying occupancy. The sta-. tute ceased to run as to that, from the moment his actual possession began. From that moment, the defendant’s possession was not exclusive of the owner’s possession; and without this important element the statute could not protect him. * This being so, the right of the respective claimants must depend upon the superiority of title.
From experience in a section of country where interfering lines often produced controversies, I had supposed the question settled, and at rest, that when such interferences existed the statute did not run in favor of either claimant, when both were in possession, excepting to the extent of actual enclosure or cultivation. I felt some surprise to hear it doubted; and my surprise was not much abated by being told, that the contrary doctrine was sustained on the ground pf actual possession by the improver to all within his lines, whether 'enclosed or not.. After twenty-one years this would be so, where there was no actual possession by the owner, because the statute, as interpreted, has fixed this period as barring the right of entry by the plaintiff. But unless this woodland occupancy is actual, as much so as the enclosure which is claimed, by the very reliance on it, the statute will not aid the improver. I maintain that his possession is but constructive, and is gone, by the actual possession of the true owner superseding it. The cases bear me out in this position, as to the character of the possession.
In Boyer v. Benlow, it is said: “ He who enters without title has no constructive possession, but is limited to the spot actually occupied,” clearly implying what the nature of the possession would be outside of such enclosure.
In Hochenberg v. Snyder, 2 W. & S. 240, the court say, that to enable an improver to hold a part of an original warrant, “ he must show in some way that his claim and constructive possession embrace so much.”
In Sailor v. Hertzog, 10 Barr, 296, payment of taxes by the intruder “ raises a presumption of ouster of the whole tract, and extends, by construction, his adverse possession to the boundaries of-the survey.” They also said the same in M‘Call v. Greely, 3 W. 69.
In Wright v. Greer, 9 W. 172, Gibson, C. J., asks, “if a settler *532on appropriated land should not he deemed in constructive possession of woodland used by him as such, why shall a non-resident?”
In Clark v. Dugan, 2 J. 87, it is said: “An assessment on a warranted tract for a disseising settler of a less quantity than is called for by the warrant and survey, if made by his procurement, or even with his knowledge and acquiescence, will lose him his constructive possession by detaching it from the landmarks that had sustained it.” See also Price on Lim. 107.
'.These and many other cases that might be cited, show what is the possession of the improver or intruder outside of his enclosure. The language of the law, as well as our appreciative faculties, unite in calling it constructive. If this be so, and the law gives the owner, as I have shown from authority it does, on entering under his legal title, the actual possession of the whole tract, then was the defendant’s possession as against the plaintiff, ever after the entry and occupancy of the owner, valueless as giving title under the statute.
The cases relied on by the defendant in error, as sustaining the idea of actual possession, I think fall far short of the mark. The law is well settled, I concede, that as against the legal seisin merely of the owner, an occupier by residence or cultivation on a tract of land, has that kind of possession which will displace the constructive possession incident to ownership merely; and this I have alluded to as a modification of the old rule. But we are treating of a case of a very different kind, one in which there is both actual and legal seisin; and in this kind of case nothing but actual, adverse possession, occupancy by enclosure or cultivation of the ground, will do it.
Thompson v. Milford, 7 Watts, 442, was a case of interference. The defendant whose title under the statute was sustained in running the boundaries of his tract, included twelve acres of the plaintiff’s lot, both being undrawn donation tracts, and cleared six acres of the twelve more than twenty-one years before suit brought, and continued the actual occupancy of it. He held the cleared land as well as the woodland by virtue of the statute, and why ? Kennedy, J., in the opinion, gives us the true reason. He says, “ The line, as marked by him (the defendant,) between him and the plaintiff below, according to the evidence, was known to the latter, and respected by him as the boundary of the defendant below, and, all the land lying on that side of it, where the latter resided, as being in his exclusive possession.” Here is the case of an admitted ouster, and a circumscription of the plaintiff’s boundary short of it. I think no lawyer will doubt the propriety of the decision on such a state of facts. The learned judge in another portion of the case says, “ for although the plaintiff below claimed the whole of tract No. 274, yet until shortly before the *533commencement of this action, he expressly, according to the evidence, confined the limit of his claim, as also that of his possession, to the line run and marked by the defendant below, excluding the land in dispute from his possession, and thus leaving, if not giving it to the defendant below.” He had no possession by reason of his own exclusion of the land, and his admitted ouster for that period left the statute full room to operate. All things else in the case outside of this element of recovery, which was conclusive in the case, were dicta only. The case does not militate against the principle I claim as the law, that the intruder’s possession of woodland is not actual. Nor is the case of Cresswell v. Altemus, 7 W. 580, any authority on the point, of inquiry. It was not a case of conflict with actual, but with legal possession. The claim was of the whole tract by the intruder, which he held after twenty-one years, the plaintiff neither entering nor even paying taxes for the whole period. His right of entry was gone by the terms of the statute after so long a period. Such also was the case of Lawrence v. Hunter, 9 W. 64.
The case of Alden v. Grove, 6 Harris, 383, is the next to be noticed, and there, (as in Thompson v. Milford,) was clear evidence of admission by the owner of the warrant, under whom the plaintiff claimed, that he did not own or claim the land, the subject of dispute, and that he bounded his claim and possession by a brush fence, on or near the line of defendant’s claim. Here was an enclosure, as well as an admission against the plaintiff, that the defendant had the exclusive possession, and that he had it not.' On this ground it was ruled in the court below, and affirmed in this court. The remarks of the judge in delivering the opinion of this court about the use of woodland, in connection with actual occupancy, were all right in their general bearing, but the principle did not become necessary to the decision of that case, k The effect of conflicting possessions then, leaves cases like the present to be determined upon the rights, or rather titles of the contestants, the Statute of Limitations having no operation whatever'as between them. There being no* exclusive possession in either party, both being occupiers of a part by enclosure or cultivation, the woodland stands without and clear of the disseisin necessary to be the foundation, as well as a continuing element in acquiring title by the statute ; the right determines to whom this belongs.
In Broms v. Lyons, 2 S. & R. 439, it is said “where there is no interference of surveys, possession of part is possession of the whole, but where surveys interfere the act has no operation against ffim who has the right, except his opponent takes an adverse and exclusive possession.” So in Hoey v. Furman, 1 Barr, 205; Clugage v. Duncan, 1 S. & R. 111. In Hatch v. Smith, 4 Barr, 109, Rogers, J., says, “ it has been repeatedly ruled that when *534there are interfering lines, the Statute of Limitations only protects to the extent actually improved.” In Waggener v. Hastings, is the same doctrine. Indeed the principle stands confessed by the effort to make the statute operate by denominating the possession of the woodland as an actual, instead of constructive possession, which I think I have shown should not be done. Both parties were in possession before the statute had run in this case. The entry of the plaintiff five years before the bar of the statute, was complete as against him, — it ceased running, — and the title must thereafter depend upon the best title. To affirm this judgment, in my opinion, is to overrule this doctrine, which, I think, would be fraught with many and great evils. It is a new step to facilitate the acquisition of titles by trespasses and wrongs. I would not take it, unless I perceived in it a controlling necessity for 'so doing to advance justice and equity ; I have been unable thus far, to perceive this.
I claim as the result of the investigation:
1. That the defendant’s possession of the woodland was constructive and not actual.
• 2. That the plaintiff’s possession under his legal title, was actual to his entire tract, excepting only to the portion enclosed and cultivated'by the defendant.
3. As a result of this, that from the time of entry by the plaintiff under his title, the defendant’s possession ceased to be adverse, and he cannot hold under the statute, to any greater extent than that of his enclosure.
4. That -as the statute did not confer a right on the defendant to hold the land in controversy, he will be obliged to yield to plaintiff’s title unless he can show a better.
5. In casé of interfering surveys the statute does not apply, excepting as to land actually occupied, and as the. defendant’s title was not complete under it when the plaintiff took possession, the parties must stand or fall by their legal rights to all not enclosed and occupied adversely for twenty-one years.
I am of opinion that the judgment in this case should1 be reversed, and a new trial awarded.