*442On Re-Hearing.
BRannon, President :Though since the filing of the above opinion upon a decision heretofore made in this case my mind has been opeu and receptive — indeed, inclined preferably to entertain reasons leading to a different conclusion upon the question, whether the burden rests on the plaintiff or defendant to locate lands reserved from an inclusive grant — a re-consider-ration lias brought my mind to’ the same conclusion as formerly announced.
In addition to the authorities cited in the foregoing opinion, I quote from the syllabus and opinion in Land-Grant Co. v. Dawson (decided Feb. 5, 1894, by the Supreme Court of the United States) 14 Sup. Ct. 458. It is not based on any special law of the territory from which it was appealed (Few Mexico) but on general principles and, I think, furnishes strong support to the view expressed in the opinion above given. The syllabus contains sections as follows : —“The effect of an exception in a grant in respect to the thing excepted is as though it had never been included in the deed.” — “Where there is an exception in the general granting clause of a deed, the party relying upon such general clause must in pleading state the general clause together with the exception and must also show by the testimony, that he is not within the exception.” — “To sustain an action of ejectment, it is necessary for the plaintiff to show that the land he seeks to recover is without the limits of the tract shown to have been conveyed away by himself.”
I quote from the opinion by Mr. Justice Brown as follows: “Under a deed from Maxwell and wife to the Maxwell Laud-Grant & Railway Company, and in all the subsequent deeds under which the plaintiff claims title, there was an exception of such tracts of land, ‘part of the said estate, hereby warranted not to .exceed in the aggregate fifteen thousand acres, which the parties of the first part have heretofore sold and conveyed,’ etc.; and the question was whether the plaintiff was bound to show.that th.e.lauds claimed by him in this suit had not theretofore been eon-*443veyed or whether the burden was on the defendant to show that they had been so conveyed. Ordinarily, the burden of proof is upon the party claiming the affirmative of the issue. There are, however, certain exceptions to this general rule. Boaring in mind that the burden was upon the plaintiff* to show its title to the identical laud claimed by the defendant, it is manifest that as the plaintiff did not take title to the fifteen thousand acres of the Maxwell land-grant, by reason of the fact that its grantors had already conveyed this amount of land, it was incumbent upon it to show that the land it sued to recover had not been previously conveyed, and- hence that it had taken title to it under its deeds. An exception in a grant is said to withdraw from its operation some part or parcel of the thing granted, which, but for the exception, would have passed to the grantee under the general description. The effect, in such cases, in respect to the thing excepted, is as though it had never been included in the deed. ' If, for example, a person should convey to another a block of land, excepting therefrom a certain lot previously conveyed, to sustain ejectment for any particular lot it would be necessary for the plaintiff to show that it was not the lot which had been previously conveyed. There is a general rule, applicable both to conveyances and statutes, that where there is an exception in the general granting or enacting clause the party relying upon the general clause must, in pleading, state the general clause, together with the exception, and must also show that he is not within the exception.” As to statutes, he cites U. S. v. Cook, 17 Wall. 168. A Virginia instance is Hill’s Case, 5 Gratt. 682.
I do not say that it is necessary to negative the exception in the declaration. Justice Brown then refers to the ease cited in the foregoing opinion as laying down the correct rule (Madison v. Owens, Litt. Sel. Cas. 281); also, the case of Taylor v. Taylor, 3 A. K. Marsh. 18, holding that “a plaintiff' in ejectment claiming under a deed conveying the balance of a tract of land must show what the balance is, and where situate, or he can not recoveralso, Guthrie v. Lewis, 1 T. B. Mon. 142, holding that, “where the complainant derives title under a deed conveying the *444whole tract patented, except parcels before conveyed to persons named, it is incumbent on him — not the defendant, who claims adversely to the patent — to show that the land in contest is not embraced in the exception.”
It is warmly pressed in argument for the other view, that none of the cases cited in support of the proposition, that the plaintiff not the defendant must locate the land reserved, hold that the burden of doing so rests upon the plaintiff. Specifically and pointedly I confess they do not; but I assert, that deductively and logically they do. Nichols v. Covey, 4 Rand. (Va.) 365, and Patrick v. Dryden, 10 W. Va. 387, and Bryant v. Willard, 21 W. Va. 65, in decision direct assert the proposition, that in the case of an inclusive grant the grantee gets no title whatever to the reserved land. So do the cases of Trotter v. Newton, 30 Gratt. 583, and Carter v. Hagan, 75 Va. 557. Now, such a grantee does not take all the land included within the exterior boundaries of the inclusive survey, “subject, however, to the reservations in said patent contained,” as asserted in Hopkins v. Ward, 6 Munf. 38 — not by any means — but he takes no title whatever to those reserved lands; not a shadow of title. Therein lies the weakness of the case of Hopkins v. Ward and some North Carolina and Tennessee decisions cited. ' We are bound to say this, because three decisions of authority binding us and highly persuasive authority from decisions of the United States Supreme Court and Kentucky say so.
Now', as these, decisions tell us that the patentee under an inclusive patent gets not an iota of title to the land reserved in it, why does it not unavoidably follow, that a plaintiff' in ejectment must show, just where those reserved lands are located, and thereby show that the defendant’s claim is not within the reservation, but on his (the plaintiff’s) laud? The plaintiff.avers that the defendant- is seated upon-his land. The plaintiff must prove it. The plaintiff does not own the reserved land, but his title paper recognizes the existence of reserved land. How can he prove that the defendant is on his land without showing the location of the reserved land ? Two bodies can not occupy the same space at the same time. Either the re*445served land or the unreserved laud occupies the point where the defendant has his cabin, not both. If the defendant is on the reserved land, no matter whether he is a squatter without shadow' of title or has color of title, he is void of trespass or offence, against the plaintiff, since the plaintiff is a stranger to that reserved land — has no right to it— though the party that has title under the original reservation may have. A plaintiff in ejectment must recover on the strength of his title to the very land occupied by the defendant. He must show that the. defendant is on his laud. I care not what route it takes to prove this. Prove it he must. If it carries burdens with it, still prove it he must. If his title paper says he owns certain boundaries except certain land within those boundaries, he must sepa^ rate the excepted land’from his own, as he owns only the residue. The inclusive grant only grants a certain number of acres; that is, the number of acres left within its exterior boundary after excluding the reserved lands. The grantee is eutitled to no more. He took the grant with the reservation, and he assumed to set apart his land whenever called on. Shall he ever be allowed to say, “I own all this boundary until you locate the reservation ?” Thus he would get more land, perhaps twice or thrice the quantity, intended to he granted. When he took his grant there were thousands of acres in entries in fieri, which afterwards lapsed to the state, yet he claims all.
We are cited to the case of McCormick v. Monroe, 1 Jones (N. C.) 13, holding that, “where there is an exception in a grant, the onus of proof lies upon the party who would take advantage of that exception.” This is neither good logic nor good law. The state or an individual — for there is no difference — grants at one date a certain one hundred acres to A., and afterwrrds grants a certain large boundary, including said one hundred acres, to B., reserving the one hundred acres granted to A. B. sues A. in ejectment, claiming that he occupies some of his land. Is it possible that A., who is prior in date of grant and does not claim under the exception but by force of his prior grant, and who is expressly saved and defended by the letter of the reservation, must show the reserved boundary, and that he *446is within the reservation ? I think not. B., when he took his grant, agreed not to molest A., and he must find A’s lines in order to perform his agreement. So ■with the case of a general reservation of so many acres reserved, though the parties, in whose favor the reservation is are not named, be they who they may, there is that reservation, and they are protected, because they are prior in time, and it “is nominated in the bond” that they shall be protected. The grantee took the grant agreeing to look them up. Records tell him what they are, and, as Chief Justice Marshall said in Greenleaf v. Birth, 6 Pet. 302, “The fact, on which the exception depends, is within the knowledge of the plaintiff and not of the defendant.” He ought best to know his’ own bounds, and the exceptions.
I am of opinion that, to entitle a plaintiff in ejectment to recover upon an inclusive survey, he must locate not merely the exterior bounds of the grant, but also the specific reservation, and as to the general reservation he must show some prior claim or claims equal in quantity to such general reservation, excluding defendant’s land; for if he shows the defendant’s land within the reserved land, he shows himself out of court. This would make a prima facie case for recovery. If the defendant wishes to dispute such location of prior claims, the burden would be on him to prove that he is within a reservation.
Dent, Judge:Plaintiffs claim under an inclusive grant, which contains within its exterior boundaries nineteen thousand and five hundred acres granted to John Steele, and nine thousand and sixty five acres excepted in favor of parties, to whom the state was obligated to make or had made prior grants. They demand the land in controversy as a part of the nineteen thousand and five hundred acres; and they insist they have made a prima facie case, when they have shown, that the laud in controversy is either a part of the nineteen thousand and five hundred acres or a part of the nine thousand and sixty five acres, and that it then devolves *447on tlie defendant to show, that such land is a part of the nine thousand and sixty five acres. This is not making a primo facie case that the land in controversy is a part of the nineteen thousand and five hundred acres, because it it is just as prima facie that it is a part of the nine thousand and sixty five acres, as they are each equally as well described in the grant.
There are two ways in which the plaintiffs may make á prima facie case: (1) By showing alleged boundaries inclusive of the land in controversy and limited under the grant to nineteen thousand and five hundred acres. This would be proving their right to recover affirmatively. (2) By showing the exterior boundaries of the whole tract and exceptions thereto sufficient in quantity and location to cover the nine thousand • and sixty five acres of excepted land exclusive of the land in controversy. The latter is an indirect or negative method of proof accorded plaintiffs for the reason that the affirmative method is not always possible ; and if the exterior boundaries include more than the sum of the grant and exceptions, to wit, nineteen thousand and five hundred plus nine thousand and sixty five, equaling twenty eight thousand five hundred and sixty five acres, the plaintiffs would have the benefit of the excess, however much it might be instead of the defendants, and would not be held down to the actual number of acres granted, to wit: nineteen thousand and five hundred but hold the the whole boundary subject only to the exceptions, as said in Hopkins v. Ward, 6 Munf. 39, and get no title whatever to the exceptions as held in Nichols v. Covey, 4 Rand. (Va.) 365. 'Having no title to the nine thousand ancj sixty five acres of exceptions, plaintiffs must show, that they are excluded from their demand. Otherwise on a demurrer to evidence everything proven by the plaintiffs and all just inferences therefrom may be true, and yet plaintiffs have no title to the land in controversy or right to recover the same. The plaintiffs’ evidence, proving with as much certainty that the land in controversy is a part of nine thous- and and sixty five acres as of the nineteen thousand and five hundred acres,’ fails to preponderate in their favor, and no judgment could be rendered as a legal conclusion from the law and facts.
*448Under the rule as laid down in Hopkins v. Ward, to wit: that the grantee in an inclusive grant is entitled to recover all the laud within its boundaries except such as a prior claimant should show himself entitled to under the reservations, to make out a prima facie case, all the plaintiff's would have to do would be to show the exterior boundaries of their inclusive grant; but the same court completely annulled this rule in Nichols v. Covey, when it held, that the inclusive grant did not pass to the patentee title to the excepted prior claims, but that the title to the same remained in the commonwealth subject only to the rights of the prior claimant, and a forfeiture of these rights inured to the benefit of the commonwealth and not to the inclusive grantee. These two decisions containing a manifest contradiction, this Court must follow the one which states the law correctly. As to this there can be no doubt. I therefore concur in the opinion of Judge BiiaNNON.
English, Judge, dissenting.