
    PENTZ vs. CORLEY.
    Where parties enter on land to cut timber the remedy of the owner-is trespass, not ejectment.
    Repeated trespasses to cut timber do not constitute possession.
    Error to Common Pleas of Clearfield County. No. 50, May Term, 1878.
    This case was formerly tried and taken to the Supreme Court, where the judgment in favor of Pentz was reversed on the ground that the evidence showed plaintiff in possession of the land at the time the ejectment was brought; see 26 P. F. Smith, 57. The case was again tried and the judge gave the jury binding instructions to find for the defendant. The evidence showed that defendants had entered upon and cut timber-on land of Pentz and took it to a saw mill in pursuance of an agreement with Pentz. Pentz, however, claimed that the agreement was. procured by fraud and not binding. Pentz then took a writ of error, complaining of the instructions of the Court below.
    
      McEnally & McCurdy, for plaintiff in error.
    Any actual occupancy by an intruder is sufficient to enable the owner to-maintain ejectment; Cooper vs. Smith, 9 S. & R., 26; Rynd vs. Rynd, 13 P. F. S., 403; Narehood vs. Wilhelm, 19 P. F. S., 64.
    
      G. R. & W Barrett, Esqs., contra.
    
    Corley only claimed to-take the timber. Ejectment only lies for the land. Rynd vs. Rynd, 12 P. F. S., 403; Kribbs vs. Downing, 1 Casey 404. The defendant must be in actual possession; Cooper vs. Smith; 9 S. & R., 31; Corley vs. Pentz, 26 P. F. S., 59. The right to-the timber cannot be determined in ejectment; Narehood vs. Wilhelm, 19 P. F. S., 66. If Pentz is injured trespass is the-proper remedy.
   The decision of the Court below was affirmed on June 10,, 1878, in the following opinion:

Per Curiam.

The evidence in this case showed clearly an undoubted and continuous possession of the whole tract of land by the plaintiff, in the ejectment below, and no ouster of the locus in quo by the defendants.

Their entry was purely a tresspass to cut timber — even upon wild lands, it has been repeatedly held that no number of trespasses to cut timber, to tap sugar trees and boil sugar, and the like, will constitute possession of the land itself. We see no error, therefore, in the instruction of the Court.

Judgment affirmed.  