
    [Chambersburg,
    October 17, 1823.]
    STAMBAUGH against HOLLABAUGH.
    IN ERROR.
    A. conveyed a tract of land of 142 acres 136 perches, to B. in fee, “ excepting a • small quantity struck off the said tract at the west end by a conditional line.” B. entered into possession of the whole, and his title and possession were transferred to several others, two of whom purchased under sheriff’s sales of the whole tract, no notice being given or claim made on the part of A. The conditional line was not marked on the ground, nor Capable of being ascertained. Á., 23 years afterwards, came on the ground, pointed out his part to his vendee, who had 21 acres surveyed, and took a deed for them from A. Held, that A’s vendee had no title to the 21 acres.
    An exception of “ a small quantity struck off a tract by a conditional line,” it seems is void for uncertainty, if there is no such conditional line ascertained, or capable of being ascertained.
    One in possession may maintain trespass against á wrongdoer: and the latter, on the plea of not guilty, cannot shelter himself under the title of a third person; he should specially plead such title, and aver a comiftand or authority from the owner to enter.-
    A verdict and judgment were rendered in this Case in the Court of Common Pleas of Perry county,' in favour of the defendant, and the charge of the president being filed at the request of the plaintiff, the case appeared on the writ of error returned to this court, to be as follows:
    It was an action of trespass quart clausum fregit brought by Phillip Stambaugh against Conrad Hollabaugh,for cutting down and carrying away certain trees. The only description of the close stated in the declaration was, that it was situated in Toboyne township. The defendants pleaded not guilty, with leave to give the special matters in evidence, and librum lenementum to which the plaintiff replied and issues were'joined.
    Both plaintiff and defendant deduced, or endeavoured to deduce title from the same original source, Thomas Hewitt. Thomas Hewitt, on the 15th August, 1766, entered an application for 150 acres on Shearman’s creek, and on the 27th April 1767, a survey was made for him by the deputy surveyor of the district, of 142 acres and 136 perches, includingthe land on which the timber was cut, and was returned into the surveyor general’s office in December,-1769; and on the 9th June, 1774, he conveyed the whole tract by the courses and distances of the official survey to James Armstrong, in consideration of £70. The habendum contained, in a parenthesis,the following words, “ (excepting a small quantity struck oil' the said tract at the west end by a conditional line.)” It appeared that James Armstrong had entered into the general possession of the tract, and that Thomas Hewitt after his conveyance to James 
      
      Armstrong, did not retain any possession. Judgments were obtained against James Armstrong, and on a fieri facias the sheriff returned a levy “ of a certain tract of land situate in Toboyne township, containing 200 acres more or less;” and sold the tract by the same description, and on the 22d September, 1789, duly conveyed the same, without any reservation, to William Lyon, who, on the 8th August, 1790, conveyed, by assignment on the sheriff’s deed, in consideration of ¿6180, to Joseph Wallace the land described in that deed. Joseph Wallace made a general entry, claiming the whole tract including the locus iii quo, and continued his general possession from 1774, to 1797, without any act done by Hewitt until after the death of James Armstrong, when some time in January,- 1797,- after an absence and desertion of the small quantity excepted in his conveyance for more than 22 years, William Armstrong, the son of James brought Hewitt on the land. James Morrison was called on by William Armstrong to go and make the survey. Wallace was sent for; who told William Armstrong, he had no land, no right to make a survey there. William Armstrong frequently called on Hewitt,- to show where to begin. Hewitt appeared to decline, saying he was an old man,- and did not wish to be the cause of dispute, that it was many years since he had been upon the land. William Armstrong still urged him to show where tó begin. Hewitt said, he did not know the woods, they were strange to him, but, pointing with his whip, he said, “somewhere there.” William Armstrong then set his compass, and- Wallace discharged him from surveying. They ran round till they surveyed a moiety of the land, as the witness expressed it. Hewitt did not go with them, and Wallace, after discharging them, went away in anger. The witness who carried the chain did not remember any lines or marks. The survey was the same as that shown at the trial; it contained 21 acres, a strip running on both sides of the creek, and was the best part of the land. Running as they did, it would still leave considerable land to the west. On the 14th January, 1797, Hewitt conveyed by courses and distances of the survey afterwards returned in 1812, to William Armstrong in consideration of ¿650. No further measure was taken by. William Armstrong until 1812, and on the 29th October, 1792,- the tract was levied on' as the estate of James Wallace, and sold, and conveyed by the sheriff to the plaintiff, who went into Wallace's possession. It was described in the sheriff’s deed, as a tract of land containing 230 acres be the same more or less, 90 acres cleared, a barn, dwelling house, and orchard. No evidence was given of any line striking off the 21 acres from the general tract, nor of any marks on the ground going further back than 1797. Wallace in his time had cleared a small piece on this 21 acres and Stambaugh another, which had been occupied by them for more than 20 years. The survey was made and returned of the 21 acres according to the courses and distances of the surveys of 1797, and patented to 
      William Armstrong. The defendant failed in his attempt to bring down the title and vest it in himself.
    Ten points were proposed by the plaintiff in the court below, on which the charge of the court was requested.
    1st point. That if the jury believe the plaintiff entered into possession by virtue of a deed or purchase of the whole land, embracing the 21 acres in dispute, and was in actual possession under such deed, of any part of the 142 acres, at the time the timber was cut, he is entitled to recover, notwithstanding the defendant may have shown an adverse title in a third person.
    
      Answer. Answered in the negative in' its full extent. The plaintiff must have had the actual or constructive possession to enable him to sustain this suit. If he had the actual possession against every person but the rightful owner, or any person under him, it •would be sufficient without a legal title. So if he had the legal right to the whole, and was in the actual possession of a part, it would be enough to sustain this suit. But if he had not the actual possession of the place where the trespass is alleged to have been committed, and had no title to it, but it was vested in a third person, in that event, the plaintiff would have no right to recover, having neither actual nor constructive possession. A possession of part gives a possession of the whole, unless adversely held or occupied by another. But possession of a part of a tract, by clearing over the line, without right, and when the title is vested in a third person, gives nonconstructive possession beyond the lands actually occupied.
    2d point. That the defendant’s plea is not supported by proof of adverse title in a third person.
    
      Answer. This depends on, the circumstances of the case. If the plaintiff had no actual possession, and only claimed under that possession which title confers, if he had no title, but it was in a third person, then he would have no possession, and the suit could not be' sustained. If the plaintiff made out an equitable or legal title in himself, accompanied with possession legal or actual, then proof of title in a third person would not support the defendant’s plea.
    3d point. That if the jury believe the plaintiff or those under whom he claims, came into' the actual possession of any part of the 142 acres by virtue of an order of survey for the whole, and had a survey made thereon, and returned into the land office, the defendant cannot shelter himself by showing a subsequent survey, warrant and patent, for a part of the land embraced in the same order; unless he or the person holding the subsequent survey, warrant and patent thereon, had the actual possession of a part or the whole of the land.
    
      Answer. The actual possession would not be necessary under such circumstances if the defendant had the legal right. A trespasser on another’s land cannot support trespass against the owner for cutting timber on his own land.
    
      4th point. That the’ actual possession of a part of the disputed land under an order of survey, and survey thereon, draws to it by presumption of law, the actual possession of the whole, so as to enable such possessor to maintain trespass against one who has not the actual possession.
    
      Answer. Such possession and survey would draw to it, by presumption of law, the possession of the whole, except against a person having a better title, or one acting under his authority, so as to enable the possessor to maintain trespass.
    5th point. That if the plaintiff entered into a part, claiming the whole, by virtue of an order of survey, and survey thereon including the whole, trespass will lie against the person cutting timber, claiming under a different or adverse title, if the plaintiff’s actual possession extended to any part of the disputed land, and the defendant or person cutting timber had not the actual possession of any part of the land under his title.
    Answer. This point answered before.
    6th point. That it is incumbent on a defendant claiming under a reservation in a deed by which the plaintiff claims title, to prove the extent of that reservation at the time,
    
      Answer. Answered in the affirmative,
    7th point, That unless the defendant has, proved the 21 acres were struck off by a consentable line in 1774, and are the same land mentioned and intended in the reservation, the plaintiff is entitled to said 21 acres.
    
      Abswer. The recognition of the line in the deed of 1774, from Hewitt to James Armstrong, under whom plaintiff claims, is prima facie evidence of its existence at the time, If the defendant has not proved the 21 acres 3re the same lands reserved, we cannot see how the defendant could claim them. Whether the plaintiff is entitled to them, would further depend on whether he purchased them or not, or his whole title is complete. The description in his sheriff’s deed is very vague, and undefined, and must be made up by extrinsic proof.
    8th point. That the reservation in the deed of 26th May, 1774, is void for uncertainty, unless a line be proved fo have then existed, striking off the 21 acres in question.
    
      Answer. We think the deed itself furnishes prima facie evidence that a line did exist at its date,- and that the reservation is not void if you can ascertain from the testimony satisfactorily, where the lands so reserved were situated.
    9th point That even if a right to 21 acres was reserved, it is not located agreeably to the meaning of said reservation, nor agreeably to the laws of the land.
    
      Answer. We see nothing in the meaning of the deed, ojr the laws of the land, to prohibit the location of the lands reserved according to the draught of the 21 acres. We cannot say in law they are improperly located: that must depend upon the evidence. You have the evidence 'of the line on one side arising out of the deed, the survey made in 1797, or thereabouts, spoken of by the witness James Morrison. It is for you to say, how far the evidence of a survey made on the ground at that period, as described by the wit? ness, corresponds with the survey of the 21 acres, now produced, with the knowledge of J. Wallace,- while living on the land, and the survey afterwards in 1812, by the deputy surveyor of the dis? trict, and returned into the office and patented, without any caveat by Wallace and Stambaugh after him, may go to establish the land reserved, or any acquiescence by the plaintiff in.the quantity as laid off. On the. other hand, you have the vague terms of the deed itself, as to what land, or what quantity of land was reserved; and the evidence of the positive disagreement of J. Wallace to the survey being made, and his declaration at the time, that Armstrong had no land there. You must decide from the whole of the evidence, what quantity of land was reserved, and where it was situated. It is not for the court, but for you, to determine, The law has been rightly stated by plaintiffs counsel, that every reasonable presumption is in favour of the grantee against the gran? tor. If he made a reservation, he should have made it in intelligible terms; and if confusion and doubt ,is superinduced by his own act, he is to bear the loss. It lies on the defendant or those claiming under the reservation, to prove the land reserved as to quantity and where situated, to the satisfaction of the jury.
    10th point. That if there was no line in 1774, striking off the land reserved, the defect could not be cured by a survey in 1797, nor in 1812.
    
      Answer. We have said that the deed of 1774, raises a presumption, that there was a line at its date. If there was imposition or fraud practised upon the grantee, or no line in fact existed, a line could not be made in 1797 or 1812, without the consent of the then owner, striking off any part, contrary to the original intent of the parties.
   The opinion of the court was delivered by

Duncan, J.

The action was trespass quare clausum fregit, and cutting down and carrying away certain trees. The only description of the close was, that it was situated in Toboyne township. The defendant pleaded non cul, with.leave to give the spe? cial matters in evidence, liberum tenementum, and replication.Much has been said on these pleas. It is sufficient to observe, that pn the plea of not guilty, every thing is put in issue, which the plaintiff is bound to prove. Here it was necessary to plaintiff to prove the possession of the land, and the trespass of the defendant. If the defendant was able to prove a freehold any where ip the township, he would support this issue. In these cases it is incumbent on fhe plaintiff to make a new assignment, specifying the locus in quo. On the plea of not guilty, the possession of the plaintiff, and the trespass by the defendant are put in issue, and on the plea of liberum tenementum, the title of the defendant only, who says I did not break into youi; possession, but if I did, I had a right so to do, because it is my freehold. I have found it necessary, in order to the proper understanding of the points made and decided in the Court of Common Pleas, to give a fuller detail of the evidence than is usual in Courts of Review. -[Here his honour stated the facts as before detailed.]

Ten points were made in the Court of Common Pleas to all which answers were given, and to these answers exceptions are taken. It would be tedious and unprofitable to measure step by step those ten exceptions; they will be considered generally; 1st, with relation to the title of the plaintiff and W, Armstrong, and then with respect to the possession of the plaintiff, premising, that possession without title is sufficient to support this action against a wrongdoer; that none but he who is entitled to the freehold can compel a party to show his title, and if a defendant would avail himself of the title being in a third person, he must specially plead an entry by his authority, and prove it, for the command is traversable. So that the evidence of W. Armstrong’s title could only be received as evidence of possession and boundary, and as such, all the evidence given was competent, for in order to show the extent of a possession, title papers, draughts, Sic. are constantly received, not only in actions of tresspass,. but indictments for forcible entry and detainer. 3 Burr. 1563.

That a man may convey a tract of land, reserving thereout a particular defined part, cannot now be made a question, no matter iri what part of the conveyance the reservation is made, whether in the premises, the clause of grant, the habendum or reddendum; and even where the reservation did not accurately describe the matter reserved, it might be helped out by averment, in the same manner that a conveyance not describing where the lands lay might be helped out. Br. Grant. 53. And bargains and sales without expressing a consideration, may be helped out by averment that money was paid. 2 Inst. 672. A reservation in apatent may be of so many acres for public use, and in that case, it seems, the election is in the patentee. 9 Johns. 500. But the reservation of a small quantity is so very uncertain, I doubt whether so vague an exception could be supported. Nor is it rendered much more certain, that it is a small quantity at the west qpd of the tract, and were it not for the reference to a line stated in the deed, the recital of both parties, for it is by indenture, it would be a difficult task to support this reservation. But notwithstanding this recital, where there have been several transfers of the whole tract, two of them public and judicial sales, and no notice given, and no act or claim by the person for whose benefit the reservation is, and who makes it, for 23 years, and no mark discernible on the ground, no land mark proving an actual line of division and separation, I would hold, that the purchaser would be entitled to the whole tract. Nowhere in this body of evidence, I am not able to discover any proof of the existence of such line before 1797, and if the recital were prima facie evidence of the existence of some line, it is far from affording any evidence of this line. It neither describes the locus, nor the quantity; it leaves all in the dark. How could a purchaser know what, or where he was buying? The land would be locked Up from any description or improvement, nil til it pleased the grantor to strike off what he pleased, or where lie pleased. Can it consist with any principié of property, or any certainty or security in conveyances and possessions, that at the end of 23 years the grantor point out with the swing of his whip, where it was to begin, though he confesses it appears a strange wood to , him, and then leave it to the man to whom he was about to sell the small quantity, to gut the whole, and scoop out the marrow of the land, and Can it depend on his nod, how much he is to take, under the denomination of a small quantity.

If it were a case of election, the party who was to do the first act would have the right, and that according to Sir Thomas Lee’s Case, 1 Leon. 263, would be the person who was to have the benefit of the reservation. But according to Jackson v. Smith, 9 Johns. 100, it would be the grantee, and if the granlee, to consummate the grant, takes possession, it would be necessary to make the location: then the grantor could not compel him to make the election, and if he should take possession before election, he would be liable to be dispossessed, in case the grantee should elect the very land he has in possession. But this can be scarcely called a case of election, which alw.ays supposes the substance from which the election was to be made, and the quantity. But if James Armstrong had the right to elect, he would make the small quantity very small, if Hewitt the small quantity would be greater. If Armstrong had the right, he had exercised it. He must of necessity enter into the whole tract, before he could make it: consequently, when he took possession, it must be of the whole, for there were no other limits visible and notorious, and he could not square his possession by invisible lines; it extended to the whole Survey of 1767.

Armstrong came into the whole possession. Wallace came after him, and the plaintiff succeeded them in the possession, and as it respected the title, if there was no visible line before 1797, the title of the whole would pass, for in 23 years, the presumptiori would be, that this undefined small quantity had been abandoned to the grantee, and when the new owner took no measures to prosecute his right until 1812, and after another public sale, here would be a period of 38 years: this would be a strong confirmation of the first presumption. The survey in 1797, was a void act; it was a trespass on the possession of Wallace. The survey of 1812, Was equally without authority. The county surveyor had no power to make it. The order of survey was functus officio, it had been ex* ecuted 45 years, returned 43 years before. If this view of the subject be.correct, as it is believed to be, the Court of Common Pleas misconceived the law so far as respected the title.

For there was no evidence of this lein of separation. There was a recital of some line struck, called a conditional line; but the recital did not conclude the parties. The recital of a particular fact may, but this recital states nothing particular. It is not a recital of boundaries, nor of quantity, nor does there exist any medium to ascertain that which is essential to the validity of the grant: but the evidence is very convincing that this line was not made until 1797. If there was an old line, there has been no fire or storm which has destroyed the marks. If there was one, why mark a new one, why did not Hewitt show it. The marks of the line of 1769, and of 1797, and of 1812, are found, but no trace of the line of 1774. In this country at that day consentable lines were not uncommon between settlers, and were often called conditional lines, lines to stand until they looked out the office rights. But the evidence amounts to demonstration, that no actual line was ever seen and marked. The prima facie evidence was done away, by this- positive proof. The not caveating the survey of 18Í2, that survey being made without authority, there being no order of re-survey, the return and patent were no evidence of an acquiescence. It was not a case to be left to the jury to decide from the whole evidence, What quantity of land was reserved, and where situated. The reservation was so uncertain as to quantity, that no earthly tribunal could decide by any rational rule, which should govern the contracts of men, what was intended by a small quantity. There could not be even a probable conjecture. It must be guess work, not the result of judgment. How could a jury, without proof aliunde,, taking up the conveyance itself, say, the small quantity is just 21 acres, and lies just where Mr. Armstrong showed it in 1797, and if we examine the evidence aliunde, so far from ascertaining the locality or quantity, it proves directly the contrary, “that nothing was done to give this reservation a local habitation, with dimensions, until 1797, and that by a lawless act, forbidden by the person possessing the general tract; The error into which the court fell, as to the title, led to all the others respecting the possession. This reservation, or rather exception; being to the grantor, and not a stranger, wbuld be good, but for its uncertainty; for an uncertain reservation such as this, might be reduced to a certainty by the grantor’s election; if there was any standard .by which to ascertain it. Hpre there is nothing but the line, and if that itself is uncertain, the reservation must be so. To compare it to a grant — if one seised of a great waste, grant the moiety of a yard-land lying in the waste, without acertaining what part, or how bounded, this may be reduced to certainty by election of the grantee. Lev. 30. Noy. 29. 1 Co. 86.

So if a man grant 20 acres, parcel of his manor, without any other description of them, yet it is not void, for'an acre is a thing certain, and the situation of the thing may be reduced to a certainty by the grantee. Keelw. 84. But if to sell £ 20 worth of his land parcel of a manor, this is void, it neither being certain in . itself, nor reducible to any certainty, for no man is made judge of the value. When the act of disposal relates to another thing, that thing becomes in a manner part of the disposition, and the standard referred to being certain, the grant by relation thereto, becomes certain, according to the common maxim, id cerium est quod cerium reddipotest. But if a man grant to another so many of his trees as may be reasonably spared, this grant is void, for there is no standard to reduce it to a certainty. Moor, 880. Hob. 168. A small quantity is much more uncertain than this — nothing could be more uncertain. The line is the standard to which the grant refers, but that must be clearly established, otherwise it would be an attempt to render an uncertain thing certain by a reference to a thing whose very existence is not ascertained.

But as it respects the possession, it is to me quite clear, that Wallace and Stambaugh were from the time they first entered on the tract, in the constructive legal possession of the whole survey: it was impossible it should be otherwise, for the defendant had no title in himself to the 21 acres. Then v if the title had been in Hewitt, and conveyed by him to W. Armstrong, (for they purchased the whole tract, by visible and 'notorious boundaries and land marks,) the possessor need not show title against a wrongdoer. A wrongdoer cannot show title in a stranger. The law with respect to the extent of possession and the medium of proof, is stated with precision by Lord Mansfield, in Harker & al. v. Berbeck & al. 3 Burr. 1556, “whoever is in possession may maintain an action of trespass against a wrongdoer to his possession, and if there be a doubt about the extent of the possession, or what part liq is in possession of, the title may be given in evidence in order to maintain his possession as to that part of it, and to ascertain the extent of it.” Under the legal title, possession of part is possession of the whole, unless there is an adverse actual possession, and will enable its possessor to maintain this action for the invasion of any part of the tract. So will actual possession of a part, entering generally under a colorable title to the whole, enable the possessor to maintain the action against every one who disturbs this constructive possession of the whole, but the legal owner, or one entering by his command. The confusion in the charge proceeds entirely from the first error, and from the perplexity of considering the title and the possession in one view, and from deciding that the recital in the conveyance from Hewitt to Armstrong was prima facie evidence of the line of 1797. It was not evidence of any particular line, and if it was prima facie evidence, the presumption was done away by the whole body of evidence, and by the whole conduct of the parties. If it is possible by any evidence to prove a negative, the non-existence of the line previous to 1797, was proved beyond doubt or cavil. Recitals never conclude a party. The recital of a particdlar fact may. The recital here is not of the particular fact, viz. the particular line, nor does it of itself give any validity to this grant. It refers to no established land mark, or standard.

On all these points, I think the case is clearly with the plaintiff, both as to title and possession, and will only add, if the party has any remedy on-this reservation,- it would be in a court of chancery by the appointment of commissioners, to ascertain where the small quantity lay, and in this state by ejectment for the whole tract, and then a jury would ascertain. But I confess, I see difficulty either in law or equity giving efficiency to such reservation, even applied to in a reasonable time, where there1 is no fixed boundary ascertaining the small quantity contemplated by the parties; but after such a lapse of time as has occurred, and after so many transfers, my opinion is, that the claim set up by the defendant, if he even had derived title from TV. Armstrong would not, at this day, be sustained in either court.

Judgment reversed, and venire facias de novo awarded,-  