
    
      Dawson v. Watkins.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P„ and Brooke, J.)
    Writ ol Right — Constructive Seisin — How Disproved*— Case Approved. — The decision in Green v. Watlrins, 7 wheat. 27, that in a writ of right, where the de-mandant shews no seisin by a pedis positio, but relies wholly on a constructive seisin by virtue of a patent of the land as vacant land, it is competent for the tenants to disprove that constructive seisin by showing that the state had previously granted the same land to other persons, with whom the tenants claim no privity, approved and acted on.
    Same — Same—Same—Case at Bar. — The demandant in a writ of right claims the land (of which the tenant is in possession) under a patent bearing date the 17th of June 1786, and the tenant disproves ' the constructive seisin of the demandant, by shewing a patent for a large tract embracing the same land, which issued as early as the first of December 1773. Whereupon the demandant, to establish a seisin in deed by a pedis positio, proves that the patentee under whom he claims came, in 1824 or 1825, to the county in which the land lies, and employed an agent to enter upon and survey the said land and various other tracts in the same county; that the said agent procured a surveyor and chain carriers immediately thereafter, who went upon the land in question, and surveyed and remarked the same for the patentee. Held, these facts are not sufficient to authorize a jury to find a seisin in the demandant.
    This was a writ of right, brought on the 22d of September 1837 in the circuit court of Kanawha county, by William M. Watkins (trustee for Caroline M. R. Johnson wife of Edward Johnson) against John Dawson. The mise was duly joined, and at May term 1840 a jury was impanelled and a special verdict returned, which found the following facts.
    That letters patent from the commonwealth of Virginia, bearing date on the 17th of June 1786, issued to Thomas Augustus Taylor assignee of Henry Banks for a tract of land containing 642 acres, lying then in the county of Greenbrier, now in the county of Kanawha.
    260 *That Thomas Augustus Taylor, in the latter part of the year 1824 or the first part of the year 1825, came to the county of Kanawha, and employed an agent to enter upon and survey the said tract of land and various other tracts claimed by him in the county of Kanawha; that the said agent procured a surveyor and chain carriers immediately thereafter, who went upon the said tract of land and surveyed and remarked the same for the said Thomas Augustus Taylor.
    That the said Thomas Augustus Taylor died intestate some time previous to the year 1830, leaving Thomas Osburn Taylor his only child and heir at law.
    That Thomas Osburn Taylor died some time previous to the year 1835, having made his will, which, on the 2d of February 1835, was admitted to record in the court of the county of Powhatan (where the said Taylor in his lifetime resided and where he died), and which will was set forth at large in the verdict. After some specific bequests, it contained a devise by the testator of the residue of his property, both real and personal, unto Holden Rhodes and Archer L. Wooldridge as trustees for Caroline M. R. Johnson wife of Edward Johnson. And the said Rhodes and Wooldridge were also appointed executors.
    That the executors named in the said will renounced their right to qualify as such, and administration with the will annexed was granted to Benjamin Watkins the sheriff of Powhatan county.
    That the said Caroline M. R. Johnson wife of Edward Johnson, afterwards, to wit, on the 7th of October 1835, by her next friend W. M. Watkins filed a bill on the equity side of the circuit court of Powhatan county, against Holden Rhodes and Archer D. Wooldridge as executors and trustees under the will aforesaid, for the purpose of substituting another trustee in the place and stead of the said Rhodes and Wool-dridge ; and by a decree of the said court Higginson Hancock was substituted 261 *in the place and stead of the said Rhodes and Wooldridge; and after-wards, by a further decree of the said court, William M. Watkins the demandant in this action was appointed and substituted, in the place and stead of said Hancock, trustee to execute and perform the will of the said Thomas O. Taylor.
    That a copy of the will of the said Thomas O. Taylor with the orders of the court of probate, and copies of the decrees in the suit aforesaid, have been admitted to record in the office of Kanawha county court.
    That in pursuance of the first decree, the said Holden Rhodes and Archer B. Wool-dridge and Caroline M. R. Johnson executed a deed of conveyance to the said Higginson Hancock, bearing date the 12th of October 183S, which deed, with the certificates of acknowledgment thereof, was duly admitted to record in the office of the county court of Kanawha on the 4th of July 1838.
    That in pursuance of the last decree, the said Higginson Hancock and Caroline M. R. Johnson executed a deed of conveyance to the said William M. Watkins the de-mandant, bearing date on the 17th of March 1837, which last deed, after being acknowledged before two justices, was on the first of June 1837 admitted to record in the office of the county court of Kanawha.
    That under an order in this cause, the surveyor of Kanawha county made a survey of the land in controversy, and returned a plat and report of the same.
    That John Green, in 1809, built a cabin and cleared about three acres of land at and immediately below the mouth of David Dick’s branch, represented on said plat by figure '2, and extending down Pontalico river: that in the same year, one Robert Atkinson built a cabin and cleared some land at and above the mouth of Grapevine branch, at letter G. on said plat: that in the fall of 1811, the tenant John Dawson purchased of Atkinson (who had previously bought out Green) the possessory 262 ^rights of the said Atkinson and Green to the improvements aforesaid, paying therefor a horse valued at SO dollars : that neither the said Atkinson nor Green had any title to said land, but both were what is commonly called in the country squatters: that the said tenant John Dawson, in February 1812, took possession under his purchase aforesaid of the two improvements aforesaid, the lower one at the time of his purchase containing about four acres of cleared ground, the upper one, formerly occupied by Green, containing about three acres as aforesaid : that the said Dawson the tenant has continued to occupy, from that time to the present time, the lands so obtained and the intermediate land lying between the same, except that portion lying above the line shaded with green, and between that and the said figure 2, at the mouth of David Dick’s branch : that the said John Dawson has, from time to time since February 1812, continued to fence, clear and cultivate additional portions of said land, and for the last seven or eight years had enclosed and in cultivation all that portion of the land within the lines shaded with green on the said plat, and situate between the line dotted with red and the said line shaded with green, on the side next to the river: that the said Atkinson, during his residence on the said land, made sugar at or near the mouth of Grapevine at letter G. and for that purpose had a sugar camp, and used the trees for some distance up said creek; and that the said trees had been since used by said Dawson from time to time in making sugar: that the said Dawson, during the period of his occupation of said land as aforesaid, has never claimed any title to the said land, other than that derived from the said Atkinson as aforesaid.
    That the land granted by the patent aforesaid to the said Thomas Augustus Taylor, and designated in the said plat by letters A. C. D. F. includes and comprehends within its boundaries all the 263 land occupied, held *or claimed by the said John Dawson as aforesaid, and designated on the plat by the lines shaded with green, beginning at letter G.
    That during the colonial government of Virginia, to wit, on the 1st of December 1773, a grant was issued in the name of the king, and signed by the lieutenant governor of the colony, granting unto George Mercer, Andrew Wagoner and John West junior a tract of land in the county of Botetourt, now Kanawha, containing 6787 acres; and this tract embraces and comprehends within its boundaries the entire tract of land granted to Thomas Augustus Taylor by the patent aforesaid of the 16th of June 1786, and designated as aforesaid by the said plat.
    That in the year 1826, Charles Fenton Mercer, one of the claimants under George Mercer one of the patentees in the said patent of the 1st of December 1773, employed a surveyor to go upon the land embraced in the said patent, and to run and mark the exterior lines of said patent, and revise and correct the partition lines which had been previously made, not less than five years before, between the patentees of the last named patent; and that said surveyor did go upon said land, and run and remark the exterior bounds last aforesaid, and did also revise and in some instances correct, and did generally ' remark, the partition lines last aforesaid.
    If the law upon these facts should be for the demandant, then the jury found for the demandant the land laid down in the plat, and designated' by the lines thereon shaded with green, commencing at letter G. at the mouth of Grapevine creek, and one cent damages; but if the law should be for the tenant, then they found for the tenant. • " . -
    The circuit court,'being of opinion that the law was for the "demandant,■■ entered judgment for him accordingly.
    264 *On the petition • of the tenant, a supersedeas was awarded.
    B. H. Smith for plaintiff in error.
    There is no seisin found in the demandant, or' any one else under whom he claims, unless the employment of an agent to survey the land may be construed into a'seisin. It is, however, obvious that seisin cannot be inferred from such an act' as' surveying the land. Seisin and possession are identical ; see opinion of Carr, J,, ’ in Bolling v. Mayor &c. of Petersburg^ ' 3 ' Rand. 5.7C). According to this authority, constructive seisin does not follow or attach to a junior grant. The constructive seisin of' the land in controversy could only be ip those'claiming under the grant' of the first of ' December 1773. The demandant, then, has to insist that he has actual seisin. And the subsequent survey cannot possibly by itself give actual seisin. The survey as found does not amount even' to an entry. The intent to take possession did not exist. The intent was to ascertain the' identity of the land. To constitute actual possession, the taking of esplees is nec1 essary. There must be some improvement of the land, and an application of it to some use of which it is susceptible, such as taking coal from a mine, or- cutting timber from the land and using or disposing of it. And in every instance there must be the intent to take possession. The act and the intent necessary to constitute actual possession are both wanting in this case. In Moss and others v. Scott, 2 Dana 274, 5, it is expressly decided that a survey is not seisin. On this subject the court is referred to 1 Salk. 246; Smith v. Burtis, 9 Johns. 180; Ellicott v. Pearl, 10 Peters 442; Ewing v. Burnet, 11 Peters 53. If, from the facts which appear, the jury had been authorized to infer seisin, still it would be a-valid objection to their verdict that the fact has,not been found. B.ut the facts did not authorize the jury, to find .either actual, or constructive seisin. And without the 265 *one or the other, no writ of right can be maintained. Watts v. Cole &c., 2 Eeigh 664.
    Cooke for defendant in error.
    A writ of right only brings into controversy the mere rights of the parties to the suit, and a better subsisting adverse title in a third person is no defence to it. Green v. Eiter and others, 8 Cranch 233. The tenant Dawson, under this decision, could not avail himself of the outstanding and superior title of Mercer, Wagoner and West. But in Green v. Watkins, 7 -Wheat. 27, it is said, that where the demandant relies for proof of seisin solely upon a constructive - seisin, in virtue of a-patent from the-state of -vacant lands, the tenant may . shew that the land has been previously granted by the state; for that disproves the demandant’s constructive seisin. This doctrine however will not avail the tenant, because in this case the demandant did not rely solely on his constructive seisin. On the contrary he proved an ■ actual seisin per pedis positionem, of the- most solemn and notorious sort. Taylor had held title to the land in question, and many - other tracts in Kanawha, from 1786 for nearly 40 years, without actual seisin' or pedis po'sitio. He went to Kanawha-in 1824 or early in 1825, to fortify his title by actual entries. In .order to shew the full eifect and legal extent of each entry, he survej^ed each tract -and remarked its boundaries. He “employed an agent to enter upon and survey this tract.” The agent procured a surveyor and chain carriers, who ‘ ‘went upon the said tract of land; and surveyed and remarked the same for the said Thomas A. Taylor. ’ ’ He found on the land a squatter, the tenant Dawson, who claimed no title to the land, and he did not turn him out. Why should he have turned Dawson out? It could have answered no purpose. He could not have taken possession of the land in a more formal and solemn way than he did, 266 ■ *unless he had served express notice on all .the neighbourhood, and uttered in their presence some form of words indicating his intention.
    Smith in reply.
    The argument of the counsel on the other side leads to the conclusion that every junior grantee necessarily has seisin: for every junior grant is preceded by a survey. But it is impossible to construe an entry by an agent, with intent to identify the land by survey, into an actual possession, especially where there is an actual adverse possession. If Dawson' was a mere -tenant at sufferance, he was not the tenant of Taylor or of those holding under him, but the tenant of those who had the superior title, and his possession was therefore adverse to all the world but the true owner. Jackson v. Shark, 9 Johns. 167. Moreover the case of Green v. Watkins, 7 Wheat. 30, shews (as does also the case of Watts v. Cole &c. j that where seisin is to be made out by a pedis positio, a taking of the esplees or something equivalent thereto is essential.
    
      
      Writ of Right — Constructive Seisin — How Disproved. —In Breathed v. Smith, 1 P. & H. 304, it is said : "It is well settled, that in a writ of right, where the . demandant shows no actual possession (or seisin by pedis positio as it is termed), but relies wholly on a constructive seisin by virtue of a patent of the land as vacant land, it is competent for the tenant to disprove that constructive seisin, by showing that the state had previously granted the same land to other persons with whom the tenant claims no privity. Green v. Watkins, 7 wheaton ; Dawson v. Watkins, 2 Rob. Rep. 259. This principle is founded on the obvious reason that the commonwealth, having by patent divested herself both of possession and title, a subsequent patent can convey neither.”
      See also, citing the principal case, Taylor v. Burn-sides, 1 Gratt. 207 ; Turpin v. Saunders, 32 Gratt. 34 ; Hollingsworth v. Sherman, 81 Va. 674 ; Harman v. Ratliff, 93 Va. 253, 24 S. E. Rep. 1023 ; Garrett v. Ramsey, 26 W. Va. 360 ; foot-note to Koiner v. Rankin, 11 Gratt. 420.
      See generally, monographic note on “Adverse Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
   AEEEN, J.

Erom the special verdict it appears that the land in controversy was embraced in two patents, and the demand-ant claimed under the junior grant. The tenant in- possession is not found to claim under the elder grant, nor is any privity shewn to exist between him and- those claiming under the first patent. Eacts are found tending to shew a continued possession of the land by him: but in the view I have taken of the case, I deem it unnecessary to express any opinion upon the character- of his possession, and shall consider the question as if he were a mere occupant without claim or colour of title. Every possession of land has the presumption of right in its favour, and until such presumption is destroyed by proof, the possession is adverse: and the actual -occupation and enjoyment oí land in the accustomed mode, without any recognition *by the occupant of title in another, or disavowal of right in himself, would, in the absence of all proof to the contrarj', raise the presumption that he held as owner. Where, however, no claim of right has been made, the law adjudges the possession to be in subservience to the legal owner (Jackson v. Thomas, 16 Johns. R. 293) ; for he cannot claim the benefit of a legal presumption, who has shewn by his acts that no such presumption exists. But without dwelling on this branch of the case, involving, as it does, questions of deep interest to many individuals, it is sufficient here to say that the demandant by this proceeding admits the tenant, for the purposes of this action, to be tenant of the freehold. This seisin thus conceded is sufficient for the tenant, if he can establish that the demandant, or those under whom he claims, had no such seisin as is required to maintain a writ of right.

The special verdict does not, in terms, find a seisin in the demandant or those under whom he claims. This perhaps would of itself be a sufficient objection to a judgment in favour of the demandant on this verdict. In Barnes v. Williams, 11 Wheaton 415, it appeared that the claim of the plaintiffs was founded on a bequest of slaves, and it was essential to a recovery at law that the assent of the executors should be proved. Chief justice Marshall said, that although, in the opinion of the court, there was sufficient evidence in the special verdict from which the jury might have found the fact, yet they had not found it, and the court, on a special verdict, could not intend it. In Watts v. Cole &c., 2 Leigh 662, it is said that seisin cannot be presumed by the court, even if the jury had found facts from which they might have properly presumed it. But passing this objection, which, if nothing more appeared, might require a venire facias de novo, have the jury found any evidence of the fact, which would have justified the finding of seisin in the demandant? If not, — if the *facts found disprove such seisin, it would be useless to send the parties back for another trial.

The commonwealth, according to the uniform course of decision, cannot be dis-seised of the public domain. Her estate is divested by her grant, and vested in the patentee. Such grant confers title on the grantee, and therefore must confer seisin, one of the essential requisites of a complete title. Accordingly it has been uniformly held that a patent confers constructive seisin in deed, sufficient to enable the patentee to maintain his writ of right. Clay v. White &c., 1 Munf. 162; Green v. Liter &c., 8 Cranch 229; Green v. Watkins, 7 Wheaton 27. But seisin of some kind must be shewn, either the constructive seisin in deed by the operation of the grant, or seisin in deed by the possession of the land and the perception of the profits. When seisin of either kind is shewn in the demandant, according to the decision of the supreme court in Green v. Liter &c., it is not competent for the tenant to defeat the action by evidence of a superior outstanding title in a third person.

The special verdict in this case finds that the land was embraced in the elder patent to Mercer and others. That grant conferred upon the grantees the seisin of the commonwealth, and disproved the constructive seisin in deed in the demandant and those under whom he claimed. To sustain his action on his junior grant, he must prove that he had seisin in deed by the actual possession and perception of the profits The land at the date of his grant was in the adverse seisin of those claiming under the senior patent; and as two claiming under different grants, and adverse to each other, cannot be seized of the same land at the same time, the junior patentee can only establish an actual seisin in himself by proving an ouster of those holding under the prior grant.

The only fact found tending to prove such ouster of the senior patentee and sei-sin by the demandant, is, *that in the year 1824 or 1825 the patentee visited the county of Kanawha, where the lands are situated, and employed an agent to enter upon and survey the tract of land in question, and various other tracts claimed by him in that county; and that the said agent immediately thereafter employed a surveyor and chain carriers, who went upon the said tract, and surveyed and remarked the same , for the patentee. What acts of ownership will be sufficient to constitute an ouster of the senior patentee, and invest the junior patentee with actual seisin in deed, must in a great measure depend on the circumstances of each case. Where seisin of the latter kind is relied on, the rule is generally laid down that it must be evidenced by an actual occupation and taking of the esplees. Cases may be put (as of a barren rock) where there are no esplees: still there must be some application of the land to some purpose of which it is susceptible. It is not necessary that the land should be enclosed or built upon, or actually cultivated or cleared; but to operate a dis-seisin of one having right, the entry should be made under the claim of title, with the intention of taking possession, and be accompanied with such visible acts of ownership as from their nature indicate a notorious claim of property in the land. The character of the acts necessary to give such seisin must necessarily vary with the situation of the land and the condition of the country. In a settled and cultivated region, an actual occupation and pernancy of the profits might be required; whilst in the wilderness, a possession of a less definite character might suffice, if the jury should be satisfied that the property was not susceptible of a more strict occupation. However difficult it may be to lay down any precise rule adapted to every case, I am satisfied that the facts found in this verdict would not have warranted the jury in finding an ouster of the rightful owner and a seisin in the demandant. It has *never been held that a subsequent and which must precede a patent) of themselves worked a disseisin of the elder patentee. Here it does not appear with what intention the entry was made. The inference from the whole finding is', that the entry was made, not with the intent to take possession, — -to give notice to adverse claimants and the community of an actual, visible and exclusive possession of the land, but with the intent to ascertain the boundaries of land claimed by the party, and to preserve the evidence with a view to some future occupation or act of ownership. To give to such a transaction the effect of an actual ouster of the true owner, would be establishing a principle by which every proprietor of vacant lands might be disseised without his knowledge or the possibility of protecting himself. There is great reason for requiring strict and satisfactory proof of such a possession as is notorious and exclusive, when seisin so acquired is alone relied on to counteract the effect of evidence adduced by the tenant, of an outstanding better title in a third person, Ror, if the possession of the tenant is without claim or colour of title, his possession is in subservience to the legal owner; he is in fact a tenant at sufferanc’e of the holder of the better title, and such a possession could not be divested but by an actual pedis positio and taking of the profits.

I think the judgment should be reversed, and a judgment entered for the tenant.

The other judges concurring, judgment reversed with costs, and judgment entered for the tenant.  