1. I fully agree with the President of
the Court of Common Pleas, that the possession proved by plaintiffs, was sufficient to recover in an ejectment, and sufficient for a presumption, that the .Commonwealth had either granted the land, or at least, a right of pre-emption, to the predecessors of the plaintiffs. And supposing it to be only a a right of pre-emption, that is good title against all persons but the Commonwealth. The compliance with the terms of pre-emption, is a matter between the Commonwealth and the occupier. A third person has nothing to do with it. There is no absolute time prescribed by law¿ on which to found this kind of presumption. Circumstances may require, in different cases, a different length of time. The *511circumstances in this case, are very strong, The land lies in the midst of a very thick settled county, where it is extremely valuable. The possession has been too notorious, to be unknown to the officers of the late proprietaries. No kind of possession can be more notorious than the building of a church, and using it for public worship, and the occupation of an adjoining piece of land, for a burial ground. The remainder of the ground, being uninclosed, is no objection to the possession of the whole. It is the common usage, to leave a piece uninclosed, for the free passage of the congregation, and the accommodation of horses and carriages. Considering the object, the possession was complete. It was all that the nature of the case required. And the length of time (90 years) is so great, that it is not tó be accounted for, without supposing a grant, or the promise of a grant, which would establish a right of pre-emption.
2. I agree also, that where two persons are in possession, the law adjudges the rightful possession to be in the one who has the right tó the land. Therefore, although this quarry was occasionally used by the defendant, yet if it was within the plaintiff’s lines, the law would adjudge the rightful possession to be in the plaintiff. It was possible, indeed, for the defendants to have had an exclusive possession, and that was a matter very properly submitted to the jury.
3. iAlthough from the evidence in this case, as we have it mentioned in the J udge’s charge, I can have no doubt of the right of the plaintiffs, to recover in an ejectment, yet there is one particular, in which it appears to me, that the law was laid down inaccurately, and the jury may have been misled by it. I understand the substance of the charge to be, that although the jury should be of opinion, that the defendant had the exclusive and adverse possession of the land from which the stones -were taken, for any time less than 21 years, yet the plaintiff might recover in this action of trover. This is not the proper form of action, to try the title of land, nor have I been able to find any case where it has been sustained for that purpose, although there are many cases, where it has been brought for the conversion of wood, coals, &c. when the right of the freehold was not claimed by the defendants. The inconvenience of trover to decide the title of the land would be great; for, being a transitory action, the trial might be transferred to a distant county, or even to a *512distant state, if the ¡defendant should happen to be found there. Neither do/I find any case, where trover has been suPPorte<^) when the possession of the land was held adversely to the plaintiif. CThere is a case, which although at first may aPpear something like an action of trover against an adverse possession, yet it may be plainly distinguished from it. I mean, the case of Player v. Roberts, 1 Jones, 243, (cited in 1 Vin. Ab. 237, pl. 7,) A, the lord of a manor, leased to B, ail the coal and coal mines, open, or to be found, in the manor. C, was a copyholder of parcel of the manor, for term of his life. A, entered on the copyhold, during C’s life, and dug coals, which he converted to his own use. B, recovered against him in trover, although neither A, nor B, could enter into the copyhold, without being trespassers. But, it must be remarked, that the title, and possession of the copyholder, were not adverse to B, because he claimed no right to the coals ; so that, although B, could not have entered to dig those coals, yet being dug, A, did him wrong in converting them to his own use, because A, had leased to to him all the coals in the manor. There was no contest about the title of the land, but only about the coals. The title was confessed by both A, and B, to be in C, so that between A, and B, it was proper to consider the possession of the coals as in B. So, in the other cases, where trover has been brought for -wood, it will be found, on analysing them, that the title to the land was not in question. There is a dictum in many books, that possession is not necessary for the support of an action of trover. I think it will be found, that this broad assertion is not true, if taken in its full extent, and without qualification. On the contrary, we find it laid down in 5 Bac. tit. Trover, C. (p. 258, and 280, of the folio ed.) that no person can maintain trover, unless he has had a possession of, as well as property in, the chattel, for the conversion of which the action is brought. And this principle, when explained, appears to be the law. The explanation is, that he who has the general property in a personal chattel, need not prove possession, because the law draws the possession to the property. But he who claims only a special property, must prove, that he once had actual possession, without which no special property is complete.^} That the law draws the possession to the property, of personal chattels .unconnected with land, may be true, and yet it does not fól*513low, that the possession is drawn in like manner, to the property of that kind of chattel, which was part of the soil, until severed from it; when the soil itself, at the moment of severance, was held adversely by another. I should rather suppose, that in such case, he who had possession of the land, had possession also of the stones dug from it, and against him, another person who had the right to the possession of' the land, could not support trover. He certainly could not support trespass. But he would not be without remedy; for he might first resoverjthe possession by eject- and then recover the mesne profits in an action of trespass. Upon the whole, as I find no. authority for supporting an action of trover, by him who has the right of possession, against him who has the actual and adverse possession, and sets up title to the land, and, as it appears to me, that many inconveniences might flow from such an action, I am of opinion, that the charge of the Court of .Common Pleas, is, in that respect, erroneous, and, therefore, the judgment should be reversed, and a venire facias de novo awarded.
Gibson J. was absent. Duncan J.This is a question of some novelty, involves important principles, and is not without its difficulties.
The action is trover, for the conversion of stones and gravel taken by the defendant below from a lot of land claimed by the plaintiffs. This action is in substance a remedy to recover the value of personal chattels, wrongfully converted by another to his own use. ' The plaintiff must have a pro^ perty in the chattel, general or special, and the actual possession, or the right to the immediate possession. In the case of personal property, the general property creates a constructive possession which will be sufficient. The common form of declaring shews, that the plaintiff must prove either an actual or a virtual possession. He declares, that being possessed he lost the goods. The constructive possession of goods follows the property. But this is not so as to lands. Where the possession is vacant, trespass will lie against a wrong-doer; it is the close of him who has the right. It has long been a settled point, that the owner of wild and uncultivated lands is to be deemed in possession so as to" maintain *514trespass; the possession of such property so continues, until an adverse possession is clearly made out. Jackson v. Sellick, 8 Johns. 262. Where the possession is vacant, it nevertheless is the close of him who has the right, and for violating that right, trespass is the proper remedy. Van Rensselaer v. Van Rensselaer, 9 Johns. 377. 1 Chitty, 176. Legal seisin carries with it the possession, unless there be adverse possession. Proprietors of Kennebeck v. Call, 1 Mass. Rep. 484. In Pennsylvania, a regular authorised survey gives such seisin and possession as that the owner may maintain trespass against an intruder.
As to lands, the party out of possessioifeif the land be held-^ adversely, cannot maintain trespass; the possession fdllows’j; the ownership, unless there be an adverse possession?! Van;| Brunt v. Schenck, 11 Johns. 385. The plaintiff mufst in-1' trover not only shew property, but must also shew, that he had at the time the actual possession, or at least a virtual • possession; .but if he had a right to the possession this is implied by law. 6 Bac. Ab. 682. 706. Possession is deemed requisite. In trover for bricks, the question turned on the possession of the brick yard. The Judge directed the jury, that if no possession of the brick yard had been taken and continued, such as was visible and notorious to the neighbourhood; the marking of part of the kiln of bricks and the memorandum for the lease would not amount to such possession as would enable the plaintiff to recover in this action. This instruction was on a motion for a new trial declared to be correct. Allen v. Smith, 10 Mass. Rep. 308. There is a natural distinction between real and personal property as to the right of the owner. General property draws to it, in the case of personal property, the .possession sufficient to enable the owner to maintain trespass, though he has never been in possession. But in the case of real property there is no such constructive possession, and unless the plaintiff had the actual possession at the time when the injury was committed, he cannot maintain trespass; 1 Chitty, 150. 176. The property of personal chattels draws to it the possession ; but not so of lands ; and when the case of Lord Cullen, (Bull. Ni. Pri. 33,) so much relied on for the defendants in error, is considered with attention, it proves this and no more, that a recovery in trover for lead dug out of a mine, was no evidence of the plaintiff being in possession of the mine, and it is so considered by *515Serjeant Williams, 2 Saund. 47, a. Certainly, a man might have trover for lead dug out of a mine; he might have a property general or special in the lead, without having the actual possession of the mine out of which it was dug, necessarily. The record of the recovery in trover for the value of the ore did not establish the fact of his possession of the mine. It might be, that trover will lie where a stranger has entered into the lands of another in his actual possession,.and committed trespass by digging his soil and carrying it away, and converting the gravel, so dug up, to recover the value of the gravel. A stranger entered into lands leased for life, and cut down timber trees and barked them, and the lessee before seizure brought trover for the bark and had judgment to recover, though the cutting down and barking were at one time. 20 Vin. 419. Alleyn, 82. In the case of Udal v. TJdal, cited per Curiam, as a case which depended seven years between Berry v. ■Heard, reported in Cro. Car. 242, the principle decided is, that trover would lie for cutting down a timber tree, barking it, and carrying away the bark. So Waller Es? Petty v. Sands, ibid. 274, for cutting, carrying away, and converting two hundred loads of timber, and two hundred loads of wood. The lessor may maintain trover for the bark of trees cut. Com. Dig. Biens H. Trees. So, though the trees are converted into boards, for the principal substance remains. Moore,. 19, 20. Though they are converted and carried away at the time of cutting, or afterwards. Alleyn, 82. Here it will be observed, that the possession of the trees was not adverse, and that immediately on the severance, the property and possession were both united in the owner of the inheritance.
It may be laid down with respect to this action, that it is in substance a remedy to recover the value of personal chattels, wrongfully converted by another to his own use; that it does not lie for injuries to land or other real property, even by a severance from the freehold, unless there be also an asportation; that if after severance from the freehold, as in the case of trees cut down, the property severed be taken away, or if coals dug from a pit be afterwards thrown out, this action will lie by the person having the right, and being in the possession, against a mere intruder and trespasser. But where one enters into land, claims title, and exercises acts of ownership such as these acts stated in this declaration, *516that he is liable in this form of action, I very much doubt. fTrover never can be the mode in which the title to freehold? can be determined.lThey are actions of different natures, diverso mtmto, not differing in form only, but m substance; one l°calj the other transitory. A verdict in one, cannot be received in evidence in another, between the same parties, as in’ Lord Cullen’s case, already stated. The title to land, can never be directly inquired into in a personal action; indirectly in a case over which the Court have jurisdiction, it may. The principal drawing after it all the incidents, it is indifferent where the land lies, be it in Turkey or China; the right to it coming incidentally before the Court in the trial of a personal action, of which its examination- is necessary, and therefore may be inquired into. Clark v. M'Intire, Addison, 235. But here the right came directly before the Court, and was the primary object of inquiry. If the action could not be supported in another county than where the cause of action arose,- this is decisive, for if trover could be supported the plaintiff could have brought the personal action any .where. But in trover, all inquiry into the title- of the freehold is precluded. In this, the plaintiffs must have made out the title, in order to a recovery; it must be the very first step; without proving the title to the land, they could not recover, for the taking and conversion of its separate clods, and the stones or gravel dug out of its bowels. ‘(Liberum tenementum could be no plea in trover, as it is in trespass.:
That it will not lie against one in possession, and who has been in possession for a period short of twenty-one years, for the exercise of any act of ownership, the conversion of the natural or artificial produce of the soil or of the earth itself, or of its contents, appears to me a clear and settled principle. If it did, trover would lie during the pendency of an ejectment to try the title, and the mesne profits be recovered before the trial of the title in ejectment. The ejectment for the land might be tried in one Court, and trover for the product of the soil in another. There might be a recovery in trover for the productions of the soil, and the right to the soil itself, on the trial of the ejectment, be found in the defendant. I know not any redress by action the owner of land has against him in possession but by ejectment, and after the recovery in ejectment, and habere facias possessionem executed and possession *517delivered, by trespass for the mesne profits. Advert for one moment to the consequences; A man in Philadelphia claims, say if you please, is the real owner, of lands in the county of Erie, fie finds the tenant in possession in this city; can he sue him in trover for cutting down his trees, digging ¡up and converting his coals ? If he could, he might do so, if the lands lay in Kentucky. If he could, the title to lands, in Kentucky, not indirectly but directly, could be decided in the Courts in this city. Trespass quare clausum-fregit, will not lie for the owner out of possession ; it will not lie in a foreign county. Trover will not lie for taking away the soil, stones, and gravel of the owner of the soil, against him who has an adverse possession. It will not lie in a foreign county for the exercise of such acts of ownership, because the Courts there cannot try or decide the title. If it would not lie in a foreign county on account of the nature of the inquiry being local, it would not lie in the proper county, because if it could be maintained, being a personal action, it would lie any where, and it cannot depend on the plaintiff, at his election, to make it local or transitory.
Without giving any opinion on the general question, how far legal seisin of a part is to be considered as the possession of the whole, to prevent the operation of the statute of limitations, it is certain that if it be not, the adverse possession must be certain, definite, notorious, continued by actual enclosure. Where the possessor does not enter on any claim of right, but is a trespasser and intruder, such possession by intrusion ought not to go beyond the actual occupation and possessio pedis. A wrong-doer can have no constructive possession. The opinion of the Court below, had this been ejectment, would appear to me correct, both as to the doctrine of possession, boundaries, and rights, and was left as fairly on the question of possession as the defendant’s case would admit of. Indeed, I would go one step further in favour of the plaintiffs, for I would consider the possession of a lot of ground of this extent, whose boundaries were ascertained by surrounding surveys, and where the possession by the members of this religious society had been in the only way in which it could be occupied for their accommodation, house of worship, burial ground, open ground for the assemblage of the hearers, and a walk-, during the interval of worship, for horses and carriages, as entitling the so*518ciety to a pre-emption right under the laws and usages oí’ Pennsylvania; thus, considering the land as not vacant, but r^t to ca^ f°r the legal title in the plaintiffs ; the equitable title being in the plaintiffs, which is sufficient in Penneylvania, to support an ejectment, and thus dispose of the objection of there being no evidence of the title being out of the state.
A possession was established, by testimony, of ninety years, as a burial ground ; a possession, 'beyond which the memory of man runneth not to the contrary, to support which, every possible intendment ought to be made. So far as respects the rights of the parties, the charge was, in all respects, proper; but not so, as I consider the law, with respect to the remedy. “ If the defendant was in possession for a period short of twenty-one years, this action could not be supported.” It is this part of the charge which appears to me to be inaccurate. “The defendant has contended that, admitting the quarry to be within the original bounds of the church lot, he has become entitled to it by long possession of that part of the ground in which it was. If he, or those he claims under, have had adverse possession of that part of the land for twenty-one years before the action is bi'ought, he is entitled to it.” Thus, putting the right to recover, in this action, on the title of the parties, and not whether the plaintiff was in possession of the quarry when the injury, complained of, was done. In this I think there was error, and, for this reason I am of opinion that judgment should be reversed. I consider it the duty of Courts to preserve the boundaries of actions; and in this case I consider it would be not only a departure in form, but that it would amount to a substantial alteration of the very nature of this action^
Judgment reversed, and a venire facias de novo awarded.