I am compelled to dissent from so much of the preceding opinion as relates to the effect of an actual possession by a junior grantee of a part of an interlock, when the actual possession of the senior grantee is outside of the interlock. But before discussing this matter I will notice a point raised in the oral argument not considered in that opinion.
The deed, dated March 18, 1811, from Alexander Ireland and wife to James "Warren conveyed 140 acres of land by metes and bounds, and the deed, dated November 30, 1836, from said Warren to George A. Sommerville,' after giving the metes and bounds of the land therein conveyed, which are materially different from those in the first mentioned *368deed, describes the land conveyed therein as “containing 140 acres, being the same tract of land which Alexander Ireland and wife by their deed,, bearing date March 18, 1811, conveyed to the'said James Warren. The difference in the metes and bounds as given.in the latter deed from those given in the former deed therein referred to is what creates the interlock causing this controversy. The counsel for the defendant in error insists that inasmuch as it is apparent from the conveyances that this difference was a mere inadvertence or mistake, and as Warren had no intention to convey any more or different land than that which had been conveyed to him by said deed from Ireland and wife, the land in controversy did not pass by the latter deed to Sommerville and his claim thereto could not form the basis of an adverse possession. If this were all that appeared, perhaps the position contended might be sound. 3 Washb. on R. P. 367. But the record shows that this alleged mistake was discovered more than twenty years before this action was brought, and-at that time the plaintiff had run the line which the jury found in their verdict, and thereafter, with full notice to.the defendant, claimed under said .deed all the land up to said line including all the land in controversy. The foundation of an adverse possession has no reference to the quality or goodness of the claimant’s title. In fact the whole doctrine of such possession rests upon the assumption that the claimant’s title is bad, at least inferior to some other title. The principal office of a claim or color of title is to define the boundaries of the adverse holding, and the authorities are conclusive that a claim to land under a conveyance however inadequate to carry the true title to such land, and however incompetent might have been the power of the grantor in such conveyance to pass the title to the subject thereof, yet a claim asserted under the provisions of such deed is strictly a color of title and one which will draw to the possession of the grantee the protection of the statute of limitations. Core v. Faupel, 24 W. Va. 238-48. The extent of such possession must,in the nature of things depend in a great measure upon the intent of the adverse holder and the acquiescence of the real, owner. And, therefore, where the adverse claimant, by an actual entry on, and occupancy of, the *369land under a color and claim of title, thus openly manifests such intention the law presumes notice thereof to the owner, and if the owner with such notice and in the face of such hostile intent, by his non-action and acquiesence permits such claim and adverse possession to continue for the statutory period, the law transfers the title to such adverse occupant without regard to the quality of his title in its inception. I therefore conclude that this position of the defendant in error can not be sustained. Kincheloe v. Tracewells, 11 Gratt. 588.
As I do not admit the correctness of certain definitions given in the preceding opinion, it may be proper, before proceeding to consider the main question, for me to state what I understand to be the legal meaning and application of the terms employed in this opinion.
The term seizin is a word which we derive from the feudal law and meant in that law the completion of the feudal investiture. It was the possession with an intent on the part of him who had it to claim a freehol d interest. This is generally termed seizin in fact. Towle v. Ayer, 8 N. H. 57; 1 Washb. R. P. 35.
Seizin in law is a right of immediate possession according to the nature of the estate. Cornyn’s Dig. — Seizin. (A. 1, 2.) A grant from the commonwealth gives a right of entry, and therefore eouters a seizin in law, but not an actual seizin or seizin in fact. Speed v. Buford, 3 Bibb 57. In the present state of the law in the United States seizin simply means ownership. Since lands may be conveyed in this country by grant, and the possession transferred without livery of seizin, the distinction between seizin in law and seizin in fact has ceased to exist and is not now known in practice. Bush v. Bradley, 4 Day 305; Bates v. Norcross, 14 Pick. 224.
Bossession is the detention or enjoyment of a corporal thing which one holds or controls by himself or by another who keeps or controls it in his name, and is either actual or constructive. Actual possession exists where the thing is in the immediate control or occupancy of the party or his agent or tenant. Taylor v. Burnsides, 1 Gratt. 165.
Constructive possession, as applied to lands, is that which exists in contemplation of law, without actual personal en*370joyment or occupation. It is simply ownership with the right of immediate actual possossion; and is, consequently, syn-onimous with the term seizin as now used in this country. Hubbard v. Austin, 11 Vt. 129; 2 Bla. Com. 116; Storrs v. Frick, 24 W. Va. 606.
A man can not physically occupy the whole of his lands at the same time or use every part of them to the same extent for the same purpose or in the same manner. His possession is necessarily more manifest and absolute as to some parts than it is as to the residue; therefore it is an established rule of law that the actual physical possession of a part gives to the person so in possession the actual possession of the whole tract or boundary covered by his title or color of title. Thus the true or apparent owner dwelling upon his farm by himself or his tenant, is as truly in the actual possession of his waters and unimproved woodland, however extensive they may be, as he is of his pastures, fields and gardens or that part of his land covered by his residence. The extent of his actual possession is co-extensive with and limited only by his title or color of title under which he claims. Taylor v. Burnsides, 1 Gratt. 165, 190; Core v. Faupel, 24 W. Va. 238, 244.
This rule is so absolute and controlling, that if the same owner or claimant has several co-terminous tracts under different claims of title, and he has actual possession of part of but one of such tracts, he will in law he regarded and treated as having the actual possession of the whole of each and all of said co-terminous tracts. Overton v. Davisson, 1 Grat. 216, 229.
Adverse possession is an actual, continued, visible and hostile possession under a claim or color of title. Core v. Faupel, supra.
From this definition as well as from necessity, there can be no such thing as constructive adverse possession. To bar the legal title there mast be an actual entry on the land. And this intrusion must be accompanied by a claim or right to the land. The principle of the prescriptive bar is to treat him who has had the absolute dominion and enjoyment of the land for a given time as the true owner against all proofs to the contrarv. It is this absolute dominion and enjoyment *371which constitute actual possession. Constructive possession, as we have seen, is simply that possession' or right of possession which the law ascribes to an owner not in actual possession. Therefore, seizin and constructive possession practically convey the same idea and they are frequently used in the same sense. But actual possession is radically different from either and means an actual occupancy with a claim of ownership. And an adverse possession can never be of the former class, but must in every case be of the latter, that is an actual possession.
In the preceding opinion the conclusion from which I dissent is the result, as I humbly conceive, of a misapplication of the phrase “constructive possession” and in assuming that there is a practical distinction in the law of this State between such possession and seizin. And it to a great extent ignores the plain and practical distinction-' between actual and constructive possession. It assumes that a person may be in the actual possession of one part and the constructive possession of another part of the same tract of land at one and the same time ; that while he is in the actual possession of his improved land and that outside of his enclosure which he uses and enjoys in connection therewith by taking water, wood, coal and other natural products therefrom, he is only in the constructive possession of all the rest of the tract. This is a doctrine, it seems to me, which is not only not warranted by the legal definitions of these terms, but it is utterly impracticable. How is the extent of this actual possession outside of the improved land and enclosure to be determined ? The occupant may cut timber and remove coal or take water from one portion today and from another portion two or five miles therefrom tomorrow, he may dig gensang on one part at one time and gather berries or other natural products atadifierenttimeand place. Are these parts, thus used and enjoyed more or less, in - his actual possession ? If so, what is the limit of his actual and where does his constructive possession begin? A mere reference to these and other difficulties that might be readily suggested demonstrates the impracticability of any such doctrine and the wisdom of the law which refuses to entertain it. According to the common law as well as the necessity of the subject a person can not be in the actual and constructive *372possession of parts of the same land at the same time. The rule is universal, except when modified as hereinafter mentioned, that a person in the actual possession of a part of a tract of land under a titleor color of title to the whole, is in the actual possession of the whole to the extent of his boundaries.
This rule in this State has two and'only two qualifications. By the uniform decisions of the courts in this country and in England, where an adverse claimant, either with or without a color of title, makes an actual entry upon and occupies, under a claim of ownership, a part of the land so in the actual possession of the true owner and thereby dissiezes the owner, such owner will not be regarded as having either the actual or constructive possession of the land so actually occupied and held by such adverse claimant.
The other modification was made by the general assembly of Virginia by Statute passed as early as 1792. It, no doubt, re'garding the common law rule as unsuited to the unimproved and unsettled condition of the lands of the State passed said statute which was continued in force up to the time this State was formed and it was then incorporated in our Code in the following words :
“In a controversy affecting real estate possession of part shall not be construed as possession of the whole, when an actual adverse possession can be proved.” Sec. 9 ch. 90, Code p. 520.
One of the judges of the court of. appeals of Virginia in the cases of Taylor v. Burnsides, 1 Grat. 165 and Overton v. Davisson, Id. 211, having dissented from the construction placed upon said statute by Judge Baldwin, who delivered the opinion of the court in those cases, and the third judge of the court of three judges sitting in those cases having expressed no opinion on the subject, the proposition now under consideration was made a qucere in each of those cases, and the precise point never having since arisen in or been decided by that court or the Court of Appeals of this State, our legislature, in 1879, in order to remove the doubt raised by said qucere and place this vexed question beyond further controversy in this State, passed an act which in effect affirms the law as stated by Judge Baldwin in the said eases. Ch. 61, Acts 1879, p. 91.
*373But as the case at bar arose prior to the year 1879, it must be decided without reference to the said act of 1879, except so far as may it be properly regarded as a legislative construction of the statute which it amended.
The whole history of the legislation of Virginia and of this State on the subject of land-titles shows a strong and manifest purpose to protect the rights of actual settlers and occupants of lands against the assertion of abandoned claims and' neglected surveys held by adventurers and delinquent owners. It is a notorious and lamentable fact that as early as 1790 this State was shingled over with large grants containing not only thousands but often hundreds of thousands of acres, the same land frequently embraced in two or more of these grants, the owners neglecting to pay the taxes thereon or settle upon or improve them in any manner, but merely holding them for speculation to be resuscitated after years of neglect and apparent abandonment in the event they should be made valuable by the enterprise and industry of honest actual settlers claiming under titles believed to be good but which are often found to be junior grants. For a cdndensed review of the system of granting lands in the territory now covered by this State, the troubles it caused and the legislation adopted to remove its great evils and protect actual bona fide occupants and settlers, reference is here made to the opinion of this Court in McClure v. Maitland, 24 W. Va. 561.
The court of appeals of Virginia observing and applying, as I understand the decisions, these rules and general principles, have established beyond controversy the following propositions as the settled law of that and this State in cases where two grants conflict and occasion what is called an interlock :
First. — The elder grantee by the mere operation of his grant acquires at once constructive possession of all the land within his boundaries, although he has taken no actual possession of any part thereof. Clay v. White, 1 Munf. 162.
Second. — The junior grantee under his grant acquires a similar constructive possession of all the land embraced by his boundaries, except that portion within the interlock, the constructive possession of which had already vested in the elder grantee. Clark v. Courtney, 5 Pet. 318, 354.
*374Third. — Where the elder grantee is not in the actual possession of any portion of his land and the junior grantee enters and occupies a part of the interlock, claiming the whole within his boundary, he thereby ousts the elder grantee of his constructive possession and becomes actually possessed to the extent of his grant. Koiner v. Rankin, 11 Grat. 420-4. If the elder grantee is in the actual possession of any part of the interlock at the time of the entry thereon by the junior grantee, then the latter can gain no adversary possession beyond the limits of his mere enclosure without an actual ouster of the elder grantee from the whole of the land in the interlock. Overton v. Davisson, 1 Grat. 211; Taylor v. Burnsides, Id. 165.
This brings us to the proposition under discussion, stated as a gucere in the two cases last cited as follows: “Whether the possession of the junior grantee will be limited to his enclosure, by the actual possession of the elder grantee of a part of the land embraced in his grant, not embraced within the limits of the grant to the junior grantee ?
The third of the foregoing propositions proves conclusively the inaccurate use of the phrase constructive possession in the preceding opinion. The junior grantee, in that instance, having no title to the land in the interlock could not, under the rule stated in the second proposition, have constructive possession. To disseize the eider grantee of any part- of the interlock the junior must have actual possession of such part. Adverse possession, as we have seen, must of necessity he actual. If, therefore, the possession of the junior grantee extends, as the law declares it does, beyond his enclosure, it can only do so because it is actual and not constructive. If it is not actual, all the authorities agree that he can not acquire title against the owner, because there can in the very nature of the thing he no constructive possession of seizin except by the owner. But the law as laid down in said third proposition, and fully sustained by the Virginia decisions, holds that the junior grantee is in the adverse and, therefore, necessarily, in the actual possession of all the land in the interlock although his enclosure, his pedis positio, may cover but a very small part of the interlock. This can uot be true, if the possession of the junior grantee beyond his mere enclosure *375is simply constructive, and can only be true when such possession both within and beyond his enclosure is actual; that is, his possession ot his enclosure, while more manifest than is that of his woods and unimproved land outside of it and within the limits of his grant, still in legal effect his possession both within and beyond his enclosure is precisely the same, and is in law actual possession.
Proceeding.directly to the proposition under enquiry. The elder grantee hy his actual occupancy oí a part of his grant is, under the common law rule before stated, in the actual possession of the whole grant including the interlock. His possession being thus actual, is equal in every respect to any actual possession which the junior could acquire by any possibility, and the elder, having the title as well as such actual possession, the junior could logically acquire no right by adverse possession even to such part of the interlock as he might enclose and of which he has the actual -pedis positio. Two persons can not at the same time have the actual possession of the same land. The actual possession by the elder grantee as effectually excludes the junior grantee from the possession, in contemplation of law, of that part which he 'actually occupies and has enclosed as it does from that portion not so occupied and enclosed. This logical result of the common law rule has been, as before-shown, so far modified by the decisions-of the courts as to regard and treat the adverse claimant as in the possession of the land actually enclosed by him. And in my opinion this rule has been further modified by the statute of 1792, hereinbefore given as found in our Code of 1868.
This statute could not have been passed to protect merely the actual enclosure of the junior claimants, because that had been done by the decisions of the courts, and had become the settled law of England and this country before the statute was enacted. Uor could it have been intended to protect the owner or older grantee against an adverse or junior claimant ; for, the elder, having the title, was fully protected when in possession of any part of the land in controversy independently of the statute. Therefore, to give the statute any force or effect it must be held to embrace the case of an actual possession of the owner or elder grantee beyond, and *376of an adverse or junior claimant within, the limits of the interlock of the conflicting grants, that is, of the land in controversy in the action. “The real estate in controversy” referred to in the statute is necessarily the land in the interlock, because the land outside of this whether within the elder or the junior grant is not in controversy; and the words “actual adverse possession,” used by the statute just as necessarily and certainly refer to the possession of the junior claimant; for the word adverse if' applied to the elder title would be meaningless, there being no such thing as an adverse possession by the true owner. The very term means, a possession adverse to the true owner, and as there can be but one title to the same land, such owner could not be au adverse claimant, unless it might be. absurdly supposed that he could hold adversely to. himself. The owner or elder grantee never holds adversely to a junoir claimant, who has no title but merely a color of title. If the owner is in possession at all, he is there as owner and by virtue of his title and not as an adverse claimant. This construction of the statute is not only reasonable and consistent with its language and in harmony with the legislative policy of the State, as before indicated, but in view of the settled law of England and this country prior to its enactment it is the only construction that can be made so as to give the statute any effect whatever as altering the common law as it then existed. It must be supposed the legislature intended to make some change in the existing law ; for otherwise, we would have to hold that it has acted without any object or purpose, a thing under the settled rules of construction the courts are not permitted to do, if it can reasonably be avoided. I, therefore, conclude that th& quaere or proposition under discussion should be decided in the affirmative ; that is, where the elder grantee is in actual possession of the land covered by his grant outside of the interlock and the adverse or junoir claimant is in the actual possession of a part of the land in the interlock claiming the whole, he will in contemplation of law and by force of the said statute he treated as being in the actual possession of the whole land embraced within his grant or color of title.
The foregoing conclusion is fully sustained by the able and instructive opinion of Judge Baldwin in Taylor v. Burnsides, *3771 Grat. 190. It is also sustained by the opinion oí Judge Lee, as I understand it, in the case of Koiner v. Rankin, 11 Grat. 424, and by the decision of the court in Cline v. Catron, 22 Grat. 378, 392, though the question was not directly presented by the record in the two latter Cases.
The conclusion above announced imposes no unreasonable hardship — its result is the same as it is in every case of the application of the statute of limitations. It simply requires that ordinary diligence which is necessary in any case to protect rights which may be lost by laches and negligence. But the hardship, if it can be so regarded, is fully counterbalanced and overcome by the necessities arising out of the extensive regions of wild and unimproved lands in this State which have been settled upon by bona: fide holders under junior grants. These settlers could not be otherwise protected in their just rights.
The owner knows, or ought to know, the boundaries of his own land, and that his adversary has settled withiirthem claiming and exercising dominion, control and ownership over the interlock. If under such circumstances he is quiescent and fails to assert his right to the interlock by action or entry thereon, he can not complain if he is barred by the statute of limitations. The junior claimant by his actual entry and occupancy on any part of the interlock puts himself in a position to be sued in ejectment or other form of action. But the senior grantee by confining his actual possession to his land outside, or even within the interlock, he having the title, does not subject himself to an action; and, consequently, unless the statute gives the junior claimant’s possession effect to the extent of his claim and boundary, he can never acquire an adverse possession beyond his mere pedispositio or enclosure, and his color of title has no operation whatever, because he may hold his enclosure under a mere claim without any paper-title of any kind. Kincheloe v. Tracewells, 11 Grat. 587
The statutes of limitations are statutes of repose and are dictated by a wise policy founded upon the presumption against him who has unreasonably delayed the assertion of a right and in favor of him who has long exercised the rights and dominion of owner. They are not made for the protection of wrong-doers; and because they apply between hostile *378pretensions and against the apparently better right, they are not in fact a protection to wrong-doers, but the instruments ot giving effect to a necessary public policy; and they are more frequently in aid ot the right than they are in support of anything that can be regarded as unjust or inequitable. To illustrate in the case of conflicting titles to land : The commonwealth issues a grant to one person for a large boundary of unimproved land, and a few days after issues another grant to another person, but by the mistake of the commonwealth, or its system of granting lands, a part of the land embraced in the first is also embraced in the second grant. Here neither grantee is at fault, both have acted in good faith and paid the same consideration for his land. The junior grantee settles upon and improves his land, then sells it to a third person for a full consideration, and thus sale after sale takes place, and then, perhaps after several generations, none of whom had any notice of the senior grant, a suit is Brought by some one claiming under the senior grantee and on the trial it is shown that five or twenty miles from the land in controversy some tenant of the senior grantee, or those claiming under him, has had a bare possession by a cabin built on it and occupied or by the enclosure of a few acres, a possession taken and held, perhaps for no other purpose than to entrap bona fide ox other adverse owners. If in such case the position I am opposing should prevail, the junior holders being actually on the interlock all this time and claiming, buying and selling the whole land embraced in their grant, would be confined to their pedis positio ór mere enclosure, and the senior claimants, who acquiesed and slept all this while, would take all the residue of the land in controversy. Such a result would surely not be regarded as just and right. Nor would the rule for which I am contending if applied in such case protect a wrong-doer, or defeat the ends of justice and right.
From what has preceded it is apparent that the authorities cited and relied on in the preceding opinion have, in my view of the question, no bearing or application in this case: They are decisions based upon the common law made in States which have no statutes changing that law, as I have attempted to show is the case in Virginia and this State. I have con*379ceded the general law and the correctness of the decisions interpreting that law, but I hold that the statute and policy of the legislature in Virginia and this State have modified and so changed that law as to make it and the decisions based on it wholly inapplicable and foreign to the question considered in this opinion. Upon all other points and questions in this cause, I fully concpr in the preceding opinion of Judge Green.
For the reasons aforesaid I am of opinion that the judgment of the circuit court should be reversed, and judgment entered here on the demurrer to evidence in favor of the plaintiff for the land found by the verdict of the jury, which is accordingly ordered.
Johnson, President, and Woods, Judge, concur in the foregoing opinion of Judge Snyder and also in so much of the preceding opinion of Judge Green as is not in conflict therewith.
REVERSED.