
    Thomas White ads. Thomas Reid.
    Continued systematic trespasses by a person, in cutting down trees and carrying off timber, cannot give him a title to land hy possession, under the statute of limitations, 
    
    This was an action of trespass to try title.
    The plaintiff produced a grant to Joseph Tiller, for the land, dated 1st March, 1802, and a deed of conveyance from Joseph Tiller, to the plaintiff, dated 3d August, 1818. On the part of the defendant, a grant to himself was produced, dated 3d May, 1802. No question arose as to the genuineness of the title on either side, nor in the location. The defendant proved that John M’Orory went into possession, as his tenant, 'x'in 1718, and continued in the occupation of the land until 1819, living in a house on the land, and L cultivating a small field. Davis proved that he built a house on the land in 1816, and went into possession as defendant’s tenant, and continued about a year. He said the land had been well timbered, but since the year 1802, the defendant had been cutting timber for his saw mill, and the greater part of the timber had been cut down and used. The timber had proved very valuable to the defendant, and the land had been principally valuable on account of the timber, inasmuch as it was not well suited for cultivation. No person had cut timber but the defendant. Joseph Kincaid had been in possession under White, in 1802. Dr. Charles Boyd, defendant’s surveyor, proved that almost all the timber was cut down, the land is very poor and stony, and but a small portion of the whole fit for cultivation. The cutting appeared to have been at different periods, and long continued. The land lies convenient to defendant’s mill, which is not far from it. One witness said it was more advantageous to use the timber for the mill, than to cut it down all at once for cultivation. James Hamilton proved much the same as Dr. Boyd. The verdict was for the plaintiff. The judge charging in his favor, that the mere trespasses, however repeated and continued, could not constitute a title by possession.
    The motion was for a new trial, on the following grounds:
    1. Because the defendant’s title being a grant from the State to himself, supported by a short anterior possession in his father, and a subsequent occasional possession by his tenants, and the defendant’s exercising for a long time, acts of ownership, acquired a legal title in himself..
    2. Because the presiding Judge misdirected the jury in expressing the opinion, that such a title and such a possession could not overthrow the plaintiff's title, though his grant was never accompanied by a concurrent possession.
    
      Gunning, for the motion. ■ Williams, contra.
    
      
      
        Bailey et al. v. Irby et al., ante, 343.
    
   *536] *The opinion of the Court was delivered by

RichaRDSon, J.

The defendant held under the younger grant, and of course had no title to the land, though he had the form of a title; on the other hand, the plaintiff exhibited a perfect title under the elder grant.

The only question then is, whether the continued systematic trespasses by the defendant, in cutting down trees and carrying off timber, can constitute a title by possession under the statute of limitations ? Possession of land, “ quasi pedis positio,” is distinguished from trespass. The former requires some use of the land, as by building upon it, tilling it, improving it, or excluding others from it, as by inclosing, which is only a mode of using it. Occupancy is defined, quod terra manens vacua occupanti conceditur. The actual possession and manurance of the land was the first cause of occupancy. Sid. 341. Now unless we adhere strictly to this common law definition of possession and occupancy, we shall confound it with trespass; and riding over a tract of land, or hunting upon it, or cutting twigs, habitually, might constitute possession. The possession to constitute a title should be such as would authorize the party to sustain a possessory action against a wrong-doer, for violating his possession; but if the defendant could do this, then every other trespasser upon land, could sue him as a trespasser reciprocally, which is absurd. Every trespass, I mean apart from the short occupancy which appeared, was distinct, and had no necessary connection with the next trespass. For instance, on one day, the defendant may have felled ten trees, the next, twenty, the third, twenty-five, and so on, successively; they cannot be called even trespasses by continuation, as by feeding cattle on another’s land. Eor in the case before us every trespass terminated in itself, and can no more be committed than beating A. to-day, is beating him to-morrow; each begins, continues, and is completed in itself. I will not dwell upon the irrational extreme, *50,71 to which the proposed innovation might be pushed, nor upon *the -* uncertainty that would follow in adjudications, predicated upon a principle which would allow a jury to require that a tree per day would be sufficient; or to decide, that one hundred are too little to constitute occupancy or possession.

The motion is unanimously dismissed.

Colcock and Johnson, JJ., concurred.  