
    [Lancaster,
    May 23, 1825.]
    WEIDMAN and others against KOHR.
    IN ERROR.
    Though the writ be in trespass guare clausum fregit, and cutting down and carrying away trees, and the narr. only for cutting down and carrying away trees on the plaintiff’s ground, the variance cannot be taken advantage of in error, after verdict and judgment.
    The title to the soil cannot come directly in question on such a declaration.
    A deed to the person in whose name an application was entered, from,the person applying, previous to entering the application, for part of the land, is, with the payment of the office fees, prima facie evidence that the title was in the person applying.
    The name subscribed as the applicant for land, in 1776, and payment of office fees by him, and his procuring a survey to be made and returned, and other circumstances, may be prima facie evidence that the title is his, and the nominee a mere trustee for him : but it may be rebutted by proof to the contrary.
    The court ought not to allow the general issue to be struck oiit in the trial, and an affirmative plea to be putin, givipg the defendant the right of conclusion: especially if it only vary the form of the pica, without making any essential difference.
    In the Court of Common Pleas of Lebanon county, to which this writ of error issued, judgment was rendered in favour of the defendant in error .and plaintiff below, Christian Rohr, against the plaintiffs in error and defendants below, John Weidman, John Philips, Daniel M‘Bride, James Philips,. and Thomas M‘Rinney, in pursuance of a verdict.
    The writ was a capias to answer for entering the plaintiffs’ close, and cutting down trees. The declaration, after reciting the writ, set forth the complaint to be for cutting down the trees mentioned in the writ, omitting the entry into the close. The defendants pleaded not guilty, with leave to give title in evidence. Shortly before the trial, the defendants asked leave to alter their plea, by withdrawing the plea of not guilty with leave, &c., and substituting instead thereof, the plea of liberum tenementum: which the court refused to do.
    The defendants, to show title in them, gave in evidence a certified copy of the following original applications remaining in the land office, with the certificate of the deceased Judge Yeates annexed, (which was read by consent,) that the originals were in the handwriting of William M‘Cullouch.
    
    
      i(June 24th, 1766. — -William Godsgrace applies for three hundred acres of land on Manady creek, adjoining the land of the widow Bell, and the mountain in Hanover township, Lebanon county.
    “ Samuel Brown applies for two hundred and fifty acres, the west side of Indiantown creek, adjoining the lands of James Wilson, John Brown, and Jindrew Brown, in Hanover township, Lebanon county.
    Received seven shillings, as fees.
    
      William M‘Cullouch.
    
    
      
      “ June 24th, 1766. — Thomas MiCullouch applies lor three hundred aeres of land adjoining the land of John Prunner, Peter Grub, and the mountains in Hanover township, Lebanon county.
    “ Thomas Kopenheffer applies for two hundred and fifty acres of land, adjoining the land applied for by Thomas M‘Cullouch, Moses Vance, and Daniel Jtíosser, in the same township and county.
    Receiyed seven shillings, office fees.
    
      William MCullouchF
    
    The court were requested by the defendants, to charge the jury-on the following points:
    1. That the application made by William M‘Cullouch, on the 34th of June, 1766, in the name of Thomas Kopenheffer, was for the use of William M‘Cullouch, and belonged to him; he having paid the office fees, and Thomas Kopenheffer having bought and accepted a deed of conveyance for part of the same land.
    
      Answer of the court. This is a matter of fact. The mere putting the application in the office by M‘Cullouch, is not in itself sufficient. It was put in in the name of Kopenheffer, and the presumption would be, that it would be for Kopenheffer’s use, and this must be rebutted by facts; such as MiCullouch,s getting the survey made and returned for himself. Thomas Kopenheffer, at the time the deed was executed, got no right from M‘Cullouch: he had none to convey: the deed is dated the 35th of February, 1766, and the date of the application — the 34th of June, 1766; and whether the deed was accepted or not is a matter of fact.
    3. That the said application, together with the survey made thereon by Jasper Scull, which was received in the land office, and accepted on the 3d of September, 1770, vested a title to the land in dispute in William M‘Cullouch: and that as against the title produced by the plaintiff, which commenced with a warrant, dated the first day of July, 1784, the defendant is entitled to the land and to the verdict of the jury.
    
      Answer. This depends on facts. The application and survey vested no title in M‘Cullouch, unless the survey was made for him.
    3. That the deed of the 1st of February, 17S7, from William, M‘Cullouch to Mathias Henning, and the deed from Mathias Henning to the defendant, dated the 12th of October, 1802, vested the title of William M‘Cullouch in the defendant; and that title being older and better than the title of the plaintiff, the defendant is entitled to a verdict, and that a mistake in the recital of a d*ed cannot in any manner affect the operative part containing the conveyance.
    
      Answer. The title of MiCullouch by the deeds vested in the defendant: but whether, that title is older and better than the title of the plaintiff, depends upon the fact of the survey under the application, having been made for the use of M‘Cullouch. The law, with regard to a mistake in the recital, is correctly stated.
    4. That if the jury believe that no actual survey was made upon the ground, under the warrant of the 1st of July, 17S4, however the case might be between the commonwealth and the plaintiff, yet that paper survey was absolutely void as against Mathias Henning, and against the defendant, who now holds his title to the land in dispute.
    
      Answer. Granted — but the return of the survey into the office is presumptive evidence that it was made on the ground.
    5. That although if a survey has been duly made under legal authority, and the land surveyed remains open to purchasers, a warrant coming afterwards to the hands of the deputy, may be applied by him to the survey already made, without running and marking the lines anew; yet as the land in this case had been appropriated by the application of William, M‘Cullouch, and the survey and return thereof under it, the land did not remain open; and, so far as it respects the lands in dispute, the application by the deputy surveyor of the survey, by which they were appropriated to the warrant of the 1st of July, 1784, was illegal, and could vest no title in the warrantee against the owner of the disputed land.
    
      Answer. If a survey has been duly made under legal authority, and the land surveyed remains open to purchasers, a warrant coming afterwards to the hands of the deputy surveyor may be applied by him to the survey already made, without running and marking the lines anew. The party for whom a survey is made, may abandon his right and throw the land open, and this is a matter of fact in this case.
    6. That the deputy surveyor had no authority, under the warrant of the 1st of July, 1784, to survey the land in dispute, as it' had been before surveyed and appropriated under MiCullouch,s application, and that, as against the defendant, such survey is of no validity.
    
      Answer. This is the law — if there be no abandonment.
    7. That as soon as the survey was made upon the ground under William MtCullouch’s application, the law cast the possession of the land upon him, so that any entry on the land thereafter would have been a trespass against him, or those claiming under him.
    
      Answer. Granted — if the survey were made for M‘Cullouch.
    
    
      8. That in this case, admitting the truth of all the testimony given on the part of the plaintiff, there has been no such evidence of an adverse possession, as to bar the right of the defendant to the lands in dispute, and therefore this part of the plaintiff’s case is not made out. In order to constitute such an adverse possession as would bar the defendants’ right, there must be a real and substantial enclosure, an actual occupancy, and apossessiopedis, which is definitive, positive, and notorious.
    
      
      Jlnswer. In ordertoconstitutesuchan adverse possession aswould bar the defendants’ right, there must be a real and substantial enclosure, an actual occupancy, a possessio pedis, which is definitive, positive, and notorious — and this is a matter of fact.
    9. That if the defendant has the title, the plaintiff cannot maintain this action, even if he had the possession.
    
      Jlnswer. Granted.
    10. That any thing which has been s,aid respecting a trial which took place at Harrisburg, between Conrad Weaver and the plaintiff, can have no influence on the determination of this cause. It was a transaction to which John Weidman was no party. The title of the parties, as now produced, must be tried, and the determination of this cause must depend upon that title, and that alone without reference to any other trial.
    
      Jlnswer. Granted.
    11. That the survey made upon the ground by virtue of the application of William 3í(Cullouch, and returned into the office, and accepted on the 3d of September, 1770, was notice to all mankind of William M‘Cullouch’s title, and he was bound to give no other notice of it; and that as there is no proof that M‘Cullouch ever knew or was present at, much less consented to a new survey being made upon his land, that survey, as against him, is absolutely void, the former survey being full notice, both to the warrantee and deputy surveyor.
    
      Jlnswer. Granted — if the survey was made for M.iCullouch; whether it was or was not is a matter of fact.
    12. That the circumstance of the deed from Cull ouch to Henning, and from him to Weidman, not being recorded, should have no weight in the cause in favour of Kohr, who does not claim under any of them.
    
      Jlnswer. Granted.
    The errors assigned by the plaintiffs in error were the following:
    
    1. The writ and recital of it contained in the declaration,, are both in trespass quare clausum fregit; but the declaration itself contains no allegation, either that the defendants broke and entered the plaintiff’s close, or that the place in which the alleged trespass was committed belonged to plaintiff.
    2. The court should have permitted the defendants to alter their plea or defence, by substituting the plea of liberum tenementum for that of not guilty.
    3. The court erred in not answering the first point in favour of the defendants, in not giving it a full answer, and, so far as they have gone, in not answering it according to law.
    4. They erred in that part of their answer to the first point, in which they declare, “ that the mere putting of the application in the office by MiCullouch, is not in itself sufficient. It was put in in the name of Kopenh'effer, and the presumption would be, that it was for Kopenheffer’s use,” &c.
    
      5. The court have not fully answered the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, or twelfth points of the defendants; — and, so far as they have proceeded in their answers, they are erroneous.
    6. They have violated the right of the defendants to have the instructions of the court delivered in an intelligible manner to the jury, upon points pertinent to the issue, by annexing to each of the defendants’ fourth, sixth, ninth, tenth, and eleventh points the word “ granted,” without further explanation.
   The opinion of the court was delivered by

Düncan, J.

The writ was a trespass guare clausum fregit, and cutting down and carrying away certain trees, there growing, of the plaintiff. The writ is recited in the declaration, but the plaintiff below, the defendant in error, omits the entry into the close in his declaration, and the gravamen is laid in cutting down and carrying away certain trees of the plaintiff, growing in a certain plantation.

The variance between the writ and count cannot be taken advantage of in this stage-of the cause, and we are only to consider whether the count states a good cause of action.. It does state a good cause of action, but it is not one in which the title to the close where the trees grew can come directly in question. It is an action ele bonis asportatis: no injury to the freehold is alleged-: he might have title to the trees, and yet no right to the soil. He might have been tenant for years of the soil, and have only a right to the shade of the trees, or he might have purchased the standing trees from the owner of the soil. But as this cause goes back on the merits, it will be well for the plaintiff to make his count correspond with his writ: but, in this view, as the title to the freehold clearly appears not to be in him, but in some person entitled to the land surveyed, or the location in the name of Thomas Kopenheffer, and as he has no right to the trees distinct from his claim to the soil, he must have failed in this action.

The merits rest on one question: — who is the owner of Kopenheffer’s survey? If Weidman had the right to it, the plaintiff never can recover. Nothing but an adverse, exclusive possession for twenty-one years eould bar the right; for the non-payment of the purchase money, after survey returned, is not evidence of abandonment. Biddle’s Lessee v. Dougal, 5 Binn. 142. That is a matter between the state and the applicant. The state has given time for payment, and no one else has any thing to do with it. What matter is it to Kohr, that the state continues to extend the time of payment to the purchaser, on an executed contract, which a return for this purpose is ?

If Weidman was not the owner, but Kopenheffer was, still, if Kopenheffer had not the actual possession, he could not maintain trespass. Actual possession is necessary to maintain trespass in this state. Constructive possession is sufficient, where there is no actual, notorious, adverse possession; but who is in the constructive possession, where neither has the actual possession ? It is in the owner, for possession always follows the ownership, unless there is an adverse possession.

Legal seisin carries with it the possession, unless there is a visible, exclusive, adverse possession, — not a casual entry. Possession and the right are presumed to go together till the contrary be shown. In unsettled lands, he who has the title has the possession, and may maintain trespass, unless an adverse possession has been taken; for where the possession is vacant, trespass will lie against a wrong-doer by him who has the legal right. But it seems now well settled, (and, I think, on rational principles,) that where a plaintiff is in actual possession, the defendant cannot give title in a third person in evidence: he may justify by command of the owner, but such command is traversable. These will be important inquiries on a subsequent trial, should the defendants not establish their right to the survey in the name of Kopenheffer.

It is not necessary to consider the numerous propositions and Answers which are complained of, seriatim; there is little variety in them. But take the whole scope and tendency of the answers relating to the matter in issue, I think there was error. The conveyance of M‘Cullouch to Kopenheffer, the name used in the application in 1766, some months before it was entered, was some evidence, in a case of this kind, that M‘Cidlouch was the discoverer of this vacant land, — for vacant it then was, — and that Kopenheffer bought his claim and right to a part of it. The recital, or rather misrecital, of an early warrant, though not evidence of a title against a third person, yet would be evidence inter se, between the parties to it, and if M‘Cullouch then had no title, but acquired it subsequently, Kopenheffer, on this conveyance, might recover from him the part conveyed, it would .enure to his use. This misrecital would not vitiate, the land being described. But, in the point of view material in this cause, it was evidence of a fact, that Thomas Kopenheffer, the supposed applicant, did acknowledge the claim of MiCullouch. There was no evidence to impugn it, or show it was a fabrication. In what was said by the court, as to the acceptance there was prima facie evidence; and that stood until the contrary was proved: — there was error in this.

The title, or the location and survey in Kopenheffer’s name, commenced in February, 1766, and was executed by the return of survey on the 3d of September, 1770. The title of Kohr did not commence until 17S4, fourteen years afterwards. The answer to the fifth proposition was erroneous, as applied to the cause and the parties: for though, under certain circumstances, as where a Survey .has been positively abandoned, it is unnecessary for the surveyor to mark the lines again, particularly where it has been recently made, or where the survey returned is bounded on all sides by adjoining surveys; yet where there has been an inofficial survey, without right in the hands of the surveyor, I do not consider that the surveyor could adapt them to a subsequent warrant, which never had issued when the survey was made, or which was not in his hands. Indeed that is contrary to positive law, as it certainly always was contrary to the duty of the surveyor and his instructions, to survey again lands that had been previously surveyed and returned, without noticing the interference, so as to apprise the land office' of the interference. But it was left, as a fact for the jury to decide, that a first survey returned had been abandoned, and left open to subsequent rights, without any testimony or circumstance from' which such a relinquishment could be inferred. Abandonment is a term applied to deserted settlements, or warrants and applications on which there has been no survey; never to survey returned. There must be some positive evidence of relinquishment: the presumption is, that it is not relinquished ; for why should a man abandon a survey he had made and paid for, and procured the return. But the great error consisted in first stating, that the presumption was, that Kopenheffer was the owner and not the trustee of M‘Cullouch, and that was only to be repelled by evidence of payment of the fees, and having the survey made for him. Where there is only one application, this is the first presumption, and this was the case in the lottery plan of the 13th of Jlpril, 1769: but even there the owner may be identified by proof of handwriting and endorsement, to show by whom the application was entered. Scott’s Lessee v. Leather, 3 Yeates, 1S5. But in the application system of 1765 and 1766, it was customary to file applications in the office of the secretary of the land office, for numerous tracts, by the same person in the name of several persons; whether for the sake of rectifying fees, or some other cause not necessary now to inquire into, three hundred acres only were granted on one application, and the evidence constantly resorted to, has been the list filed by the man who paid the fees and entered the application; and, to authenticate this, it was usual to subscribe the real applicant, — as, here, William M‘Cullouch. The original list, with proof of the handwriting of the subscriber, hás been very often received as evidence, and indeed is primary evidence of the original owner. This rebuts the first presumption arising from the name, and then another presumption takes place, that the subscriber to the list is the real owner, and the fees of office being paid by him, this creates a resulting trust to his use. The name is a mere ceremony; the use results to the man who really entered the application. The nominee is but a trustee. The evidence was of this nature. The inception of the title was the act of M‘ Cidlouch; the subsequent fees were paid by him. To be sure, even this would not be con-elusive evidence: that presumption might be likewise removed. As, if another had the survey made, paid the taxes, took posses» sion, occupied it for years as his own; especially if he transferred the right. The subject is open to inquiry, and the inquiry is not as to the name used, but who and for whose use was it used. A delay, an acquiescence, permitting acts to be done, — as a 'survey made, and sale, — would postpone the man who barely put in the location. Ewing v. Barton. But, in addition to the intrinsic evidence of Kopenheffer’s name being merely used as an instrument, a ceremony, there is all the extrinsic testimony, that M‘Cullouch was the owner: the conveyance by M‘Cullouch to Kopenheffer, — the superintendance of the survey. It is a mistake to suppose, that the only medium of proof is payment of the surveyor’s fees. That is one, and it is for this reason, that it is an important act, denoting ownership: but this does not exclude all other acts tending to prove the same thing, — ownership;—and when the decisions referred to in the argument speak of payment of surveying fees indicating ownership, that is only put by way of example and illustration; and, in the last decided case on this subject, Cluggage v. Duncan’s Lessee, 1 Serg. & Rawle, 111, the court said, superintending the survey, or paying the surveyor’s fees, is sufficient to show the real owner. Now, the plaintiffs in error did prove, that the survey was made undér the direction of M‘Cullouch; and as that survey was immediately returned, the presumption is cogent, that he likewise paid the surveyor’s fees. The surveyor would not have returned it without payment of his fees, and who else would pay than M‘Cullouch, for no one else ever claimed the land; and what is still more convincing evidence of his ownership is, that only he and those claiming under him, have claimed and exercised the rights of ownership, and no one else to this day, for nearly forty years, has ever put in a claim to the location. I think the court properly rejected the application to strike out the plea of not guilty, with leave to give title in evidence, and substitute that of liberum tenemenium. The alteration did not give to the defendants any substantial meritorious advantage. He could have given the same evidence on the first plea, as the one desired to be substituted. It would give him the benefit of a reply, — the last word, and nothing more. This has constantly been refused. When non est factum and payment have been pleaded, the defendant would not be permitted to put the plaintiff to all the trouble and expense of proving the execution of the bond, and on the eve of trial to withdraw that defence, and stand on his affirmative plea, either at the common law or under any statute of amendment, or under the act of assembly, which was only intended to put it in the power of the defendant to have opportunity, even on the trial, to alter or add a new plea where the former ones would not reach the merits of his defence.

Judgment reversed, and a venire facias de novo awarded.  