
    Hall and others against Powel.
    
      Monday, October 5.
    In ElUlOIi.
    Where the diSres'expressed in a return ot survey differ from the natural and artificial boundaries on the fatter are to prevail j tin* less land has been intentionally thrown out, ■which is a fact for the jury to decide.
    If a lease be, t( of all that tractofland,situate,&c. supposed to contain — acres, more or less, now in the occupancy of A B,”ana AB occupy more land than the quantity expressed, lying on both sides pute with his leas”1 ¿fail * that he is in of.
    If the ful owner of a tract of land is in actual possession of a part, he is in constructive and legal possession of the whole, unless he » actually disseised; but if a man enter wrongfully into the1 possession of another, his possession does not extend beyond his aotual enclosures and improvements, and the statute of limitations will protect no other possession.
    THIS case came before the Court on a writ of error to die Common Pleas of Huntingdon county. The opinion of the Court below was filed agreeably to the act of assembly, , .. j and came up with the record.
    It was an ejectment brought by the defendant in error, John H. Powel, against Thomas Hall, Jacob Taylor, and Elijah Corbin, to recover a body of lands which he claimed under five warrants, of various dates, in the name of Henry Boquet, on which surveys were made and patents issued. The title was regularly deduced to the plaintiff, and it was conceded, that it was indisputable for whatever extent of land was embraced by it. The controversy was, whether the title covered the land in dispute. ■ It was admitted by the defendants, that certain lines were run and marked on. the ground, but they contended, that the surveyor, afterwards, intentionally varied from those lines, and returned the surveys differently, and that the plaintiff was not entitled to recover beyond the lines and courses expressed in his return of survey and patent. Much evidence was given at the trial, of which it is necessary to state only a small part. It appeared. to April Term, 1800, ejectments had been brought by Elizabeth Powel, under whom the plaintiff claimed, against Thomas, William, and Nathan Hall, who were settled on one or more 0f the surveys,.and against James Brown, who was J ’ ° 17 _ . r .. . settled on one of the surveys. In the following May, 
      judgments were entered against the defendants, who agreed to take leases from the plaintiff. The lease to the Halls, which was dated May 27, 1800, and was renewed in 1803, was of “ that certain plantation, situated on the waters of Big Trough Creek, in Union township, containing about two hunJ i , , • . » 15 , . ., dred and thirty acres, be the same more or less, now in the possession of Thomas Hall.” Thomas Hall and his brothers, for whom he was authorised to act in relation to the lease, were in possession of land on both sides of the disputed line. The lease to Brown was dated June 2d, 1800, and was for “ all that certain plantation or part of a tract of land, situate on Big Trough Creek waters, supposed to contain about twenty acres, more or less, now in the occupancy of the said James Brown” Brown, also, was in possession of land on both sides of the disputed line. About twenty acres were admitted to be within the plaintiff’s survey, but his house and more than twenty acres of land, were on the other side of the line.
    The President of the Court of Common Pleas, (Walker,) in charging the jury, laid down the law involved in the case, in the following manner.
    1. “That if a surveyor marks corners and lines on the ground, and makes a return calling for some of them, it is to be presumed, that he returns by the marked lines and corners, for otherwise he would deceive his employers. If the surveyor had intended to cut off land, why not call for posts ? If he had, there would have been no difficulty; but his leaving out land and yet calling for the marked corners, is a gross fraud, if he left out any land included in such lines.
    2. “ That where lines and corners are to be found on the ground they cannot be departed from, though there may be some variance in the courses ; and if the waters are found to agree with the lines and corners returned, this is strong evidence of a survey actually made.
    3. “ It is an invariable rule, that where two corners are established, the course is to be disregarded, especially in a closing line. By taking this course and running from the post to the white oak, the course is varied, and the distance 5 but you preserve all the courses and lines except one.
    4. “ If a lease be given for a tract more or less, and there is at the time, more than the quantity, and the party occupies land on both sides of the line disputed, under the lease, unless the lease specifies, or unless it is proved, that a part was excepted, it must be considered as a lease of the whole, and the lessee must give up the whole.
    5. “Where a man claims by improvement adversely, and has not his pretentions marked out by lines or a survey, he is only protected, (by the act of limitations,) as far as is covered by houses, and fields, and actual possession.”
    Burnside, for the plaintiffs in error.
    1. The charge of the Court below, in laying down the law in general and unqualified terms, that courses and distances were to be disregarded, where there were marked lines and corners on the ground, and that the rule was, invariably to adhere to those lines and corners, stated it much too broadly, and intrenched upon the province of the jury, whose business it was to decide, whether or not part of the land was intentionally thrown out. As respects this case, the law was certainly erroneously stated, for according to the plaintiff’s claim, every line in the survey was changed. The surveyor was not bound, as the Court declare, to return all the land within the marked lines, when the warrant was for 200 acres and the lines included 400 acres. So far from being a fraud on the warrantee to neglect to do so, to have done so, would clearly have been a fraud on the Commonwealth, and in direct violation of the order, made before the return of this survey, not to return more than ten per cent. The lines expressed in the return of survey and the patent, designated and limited the plaintiff’s title, and he is bound by them. That such is the law may be collected from several cases decided in this Court. Lessee of MiRhea v. Plummer.
      
       Morris v. Thomas, 
      
       Lessee of Davis v. Butterhach.
      
       Lessee of Duncan v. Curry.
    
    2. It was also error to say, as applied to this case, that a lease of a tract of land of 20 acres, more or less, includes the whole tract, unless some part is particularly excepted. Brown had more than 20 acres, with his house, lying out of the disputed line, and about 20 acres more, within that line. The latter was evidently the land intended to be leased, and this the jury should have been permitted to pass upon.
    
      3. But the most important error committed by the Court of Common Pleas, was in that part of their opinion which confines the protection of the act of limitations to land actually included within inclosures. Entry with a view to settlement, lays the foundation of a title greatly favoured in Pennsylva- ... . ... i i i tit j ma, and gives an inceptive right to the whole tract. Woodland is absolutely necessary to the enjoyment of that which is cleared, and a person holding the cleared land as an improver, is considered to.be in actual possession of the adjoining woodland used by him, and may support trespass for it. The entry, therefore, of a man who has no title, is an ouster of the owner from the whole tract. At all events, what was the extent of the defendant’s possession, and whether or not it was adverse, ought to have been left to the jury. He cited Vandyck v. Van Beuren.
      
       Jackson v. Bowenf
      
       Jackson v. Vedder.
      
       Stuyvesant v. Dunham.
      
    
    
      Tod and Thompson, for the defendant in error.
    The defendants below were perfectly aware, that they were settling on patented land. The plaintiff, and those under whom he claimed, had always paid the taxes, and the marked lines were doubtless known. In 1800, ejectments were brought against the tenants, who, after having taken the advice of counsel, confessed judgments and took leases. There was then no dispute about lines; the marked lines were then considered by all as the boundaries.
    That the law was correctly laid down in relation to the first point, does not admit of a doubt. The natural and,artificial marks upon the ground have always prevailed; the. return of survey being no more than evidence of the appropriation of the land, liable to be controuled by thé actual survey. All the. land, therefore, within the marked lines, will pass to the grantee, by a deed. So the law was laid down in The lessee of Toder v. Fleming,
      
       where it was treated as a point completely determined by a variety of judicial decisions. Nor is it in any manner shaken by the case of MlRhea v. Plummer, in which the point decided was, that in making a new survey which is bounded by an old one, it is not necessary, a second time, to mark the lines of the old survey; or by any of the cases cited on the opposite side. The same rule, a rule founded in certainty and convenience, prevails in' several other states. Shawv. Clements.
      
       Herbert v. Wise.
      
       Bastinv. Christie.
      Smith v. Murphy.
      
       Baker v. Lessee of Glascock.
      
    
    With respect to the act of limitations, it was of no consequence whether the charge was right or wrong, because the jury were of opinion, that there was no adverse possession for twenty-one years, even of the defendant’s houses and enclosed lands. But if it be of importance, the charge was right. The return of survey and patent gave a constructive possession, which continues as to every part of the tract not in the actual possession of another. The question is, what is an adverse possession, within the meaning of the act of limitations ? In New Tork, several decisions have restrained the title by possession to the true grounds. He who claims by adverse possession, must shew by strict proof, that he entered adversely, and has continued to hold under a hostile claim. An enclosure by a possession fence, made by felling trees and making them lap over one another, will not take away the owner’s right of entry after twenty years. There must be a real, substantial enclosure, an occupancy, a possessio pedis, definite, actual, and positive, to constitute such an adverse possession as will countervail a legal title. Brandt v. Ogden.
      
       Jackson v. Schoonmaker.
      
       Jackson v. Gansevoort.
      
       In the present case, the possession was not adverse ; it was with the full knowledge of the plaintiff’s title and boundaries. The defendants never entered with a view to gain a title by improvement. On the contrary, they expressly recognised the plaintiff’s title, by taking leases and confessing judgments, and these leases unquestionably comprehended all the land held by them. They were so expressed ; they were for plantations containing so many acres, more or less, in the occupancy of the lessees, and must be construed to embrace all the land held by them, without regard to any particular number of acres.
    
      
      
         1 Binn. 227.
    
    
      
       5 Binn. 77.
      
    
    
      
       2 Teates, 212.
    
    
      
      
         3 Binn. 21.
    
    
      
      
         1 Caines, 90,
    
    
      
      
         1 Caines, 35S.
      
    
    
      
       3 Johns. S.
      
    
    
      
      
         9 Johns. 63.
      
    
    
      
      
         2 Teates, 311.
    
    
      
      
         1 Call. 433.
    
    
      
      
        3 Call. 242.
    
    
      
      
        Taylor, 116.
    
    
      
       Taylor, 303'.
    
    
      
      
         1 Hen. & JHunJ. 177.
    
    
      
       1 Johns. 158.
    
    
      
       2 Johns. 234. 4 Johns. 390. S. C.
      
    
    
      
      
         3 Johns. Cas. 109.
    
   The opinion of the Court was delivered by

Duncan J.

The President of the Court of Common Pleas, having filed of record the charge of the Court, under the act of assembly, it is brought up for revision by this Court, and the errors in law now assigned, are, 1st. That the Court erred in stating it to be a matter of law, “ that if a surveyor marks corners and lines on the ground, and makes a return, calling for some of them, it is to be presumed, that he returns by the marked lines and corners; for otherwise he would deceive his employers. If the surveyor intended to cut off land, why not call for posts ? if he had, there would have been no difficulty; but his leaving out land, and yet calling for the marked corners, is a gross fraud, if he left out any land included in such lines.” In this State, the natural and artificial boundaries, the monuments described as the boundaries and limits of a survey, in general form the only evidence of a survey. To these limits, thus ¡returned, the survey extends, whatever may be the courses and distances expressed in such return; and this is the common law of the land. If unbroken usage, and a uniform course of judicial decisions can make the law, then this was properly decided by the Court, to be a general rule of property. On this head, I shall content myself with referring only to one decision of the Court. Mageehan v. Lessee of Adams, 2 Binn. 109. A survey and patent of one Conrad, which were given in evidence, called for, as the place of beginning, a black oak on the State line, thence by the same 130 perches, to a post. The plaintiff below, offered to prove that the black oak, and the marked line run from the black oak, were not on the State line, but about 30 perches east of it, and the evidence was admitted,and the plaintiff recovered according to the marked line. The judgment was affirmed by the unanimous opinion of the Court, who stated that this had been so settled many times. This is not peculiar to Pennsylvania. In Massachusetts, the same rule prevails. Howe et al. v. Bass. 2 Mass. Rep. 380. The Court there consider it as an established rule of construction, that where a deed describes lands by its ad-measurement, and at the same time by known and visible monuments, the latter shall prevail; and declare that it had been long and invariably held, that in case of a variance in the description of land, between the monuments and the length of lines, the former are to govern, and that, without any re*lation to the quantity. The corner trees here are the visible hounding trees, and allowed land marks, which, by our laws, to remove, is made an indictable offence.

Second error assigned. The Court state the law to be, “that where lines and corners are to be found on the ground, they cannot be departed from, though there may be some variance in the courses, and if the waters are found to agree with the lines and corners returned, this is strong evidence of a survey actually made.” So has the law ever been held. The question has been frequently agitated, and is now put at rest. The field notes, the original plots made by the surveyor, the survey returned, and the patent, are only evidence of the survey. The real survey, the primary evidence, is, the marks on the ground. In Yoder v. Fleming, before Shippen and Yeates, Justices, at Nisi Prius, at Lewistown, 1798, 2 Sm. L. 256, the question occurred, whether the pretensions of a party should be determined by the courses and distances expressed in the return of survey, or by the marked trees, and lines actually run; and thus was the law laid down by these Judges, whose experience in questions of this nature, was greater than that of any men now living.. “ The natural or artificial boundaries of a survey, have uniformly prevailed, and there is absolute certainty, when a right line is followed from one corner to another; but the best instruments will vary in some small degree. For the sake of public convenience, and individual safety, all the lands comprised within certain marked lines, or proceeding from marked and known corners, will pass in a deed. Any surplus measure, or variation in the courses and distances, will not vitiate the instrument. The lines actually run on the ground, are the true survey and appropriation of the land contracted for; but the return of survey is only evidence thereof, and shall be controlled by the actual survey. This point had been frequently determined, and particularly in Walker v. Furry & Krehl, before Ch. J. M‘Kean, in 1790.

The third error assigned, is, in the Court stating to the jury as an invariable rule, that where two corners are established, the course is to be disregarded. As a general rule, this is admitted by the counsel of the plaintiffs in error. It is contended, that it is stated in too broad terms, and is not without exception. Rut the Court have qualified the general expression of the invariable nature of the rule; for they proceed to state, “ especially in a closing line(and applying the rule to the closing line here,) “ by taking this course, and running from the post to the white oak, the course is varied, and the distance; but all the lines and corners except one, are preservedand this was precisely decided, in Yoder v. Fleming,

The counsel for the defendants below, on the trial contended, that the surveyor, after he had calculated the whole contents, found he could not return the whole, as the surplus would exceed ten per cent, and therefore he threw out a part, fairly and intentionally. The fact of throwing out a part, was left to the jury; “ you will decide, whether the surveyor did not return the survey on the exterior linesand towards the close of the charge, on a suggestion from the counsel of the plaintiffs in error, it is repeated, that this fact is submitted to the jury.

How it arose, that the plot of the deputy who made the survey returned to his principal, varies in one course SSdegrees east, from the marks on the ground, it is difficult to account for. It could not be, that he intended to return the whole block of surveys by an open line, for he has returned them by the marked line and marked boundaries. It could not be that he intended to disregard the whole of the marked exterior line, because the corners of that exterior line are made the boundaries of the survey returned; because they are made by him to represent the exterior line of the survey. It could not be, that he intended to throw off the triangular piece of about 11 acres, in obedience to his instructions not to return more than ten per cent surplus, for he would still leave a surplus, if that was his guide, which he could not return on the other six warrants. It could not be thought he intended to change the whole surveys, because he refers to the marked boundary; because the waters are laid down as they actually run, on the surveys marked on the ground; and because it would include part of the land he secured for himself on that same day, and which he returned. But however this was, all this was left to the jury, who have found the fact, that the surveys of defendant in error, did include the lands in dispute, and that the surveyor did restrain them to the exterior line, and that no part of the original survey was thrown out. The extent of the survey was a fact, and as such was left to, and has been found by the jury. If the jury erred, this Court cannot rectify the error, Werdman v. Felmly, 6 Binn. 39.

It is again alleged as error, that the Court laid down the law, “ that if alease is given for a tract, more or less, and there is at the timé more than the quantity, and the party occupies lands on both sides of the disputed line, under the lease, unless the lease specifies, or unless it is proved that a part was excepted, it must be considered as a lease of the whole.” This will be considered with respect to Hall’s lease, and then to Brown’s. Elizabeth Powel, under whom J. H. Powel, the plaintiff in error, claims, the then proprietor, to April Term, 1800, brought an ejectment against the Halls. This was four years before the survey made under the direction of John Canon, and certainly for alí the lands within the survey. May 28th, 1800, judgment;—Thomas Hall having taken a lease for himself and brothers. The lease is, “ of that certain plantation situated on the waters of Big Trough Creek, in Union township, containing about 230 acres, be the same more or less, now in possession of Thomas Hall.” This is not a lease of any particular number of acres, by the acre, but of the tract in solido, in his possession; a lease in bulk; the tract of land in his possession, whatever it may contain. To the same term an ejectment is brought against James Brown, by Elizabeth Powel, and on 2d June, 1800, judgment against defendants for costs; defendants having taken a lease. The lease is dated 2d June, 1800, and is “ for all that certain plantation, or part of a tract of land, situated on Big Trough Creek waters, supposed to contain about 20 acres, more or less, now in the occupancy of the said James Brown.” What is the extent of this demise ? All that Brown was in the occupancy of; all that certain plantation, or part of a tract, or whatever the quantity might be ; they knew not how much of the plantation he was in possession of; they supposed it about 20 acres, but whether it was more or less, whatever was in his possession, he leased.

The description in the lease is not of quantity, but of occupancy. The plantation, the part of the tract in his occupancy, is the description; the quantity is not ascertained, nor intended to be ascertained by the number of acres; its boundaries and limits, are Brown’s occupancy, supposed to contain about 20 acres more or less. It is any thing else than a lease of a certain number of acres; it is uncertain of itself supposed, about, more or less, and must be rendered certain by some other matter referred to in the lease ; that matter is the occupancy, which is the only limit and bound of the lease; it is thus rendered certain. In investigating the judicial construction of any written instrument, reference must be had to the subject matter; the subject matter of the lease is, that certain plantation, or part of a tract of land, then in the occupancy of James Brown; all the lands in that tract of land, in the occupancy of Brown, whatever might be the quantity. If the jury found this land to be in the survey, plantation, or tract of land of Mrs. Towel, and Brown to be in possession in 1800, Cas is here contended by the plaintiffs in error,) then it was leased, and Brown became the tenant of Mrs. Powel. The qualification of the legal import of the words used in the lease, would be, if at the time of the execution of the lease, a part was excepted, and then it would be otherwise ; then the terms would be explained and restricted, and thus it is qualified in the opinion delivered, If this be so, then no question of limits could arise, because there was no adverse possession.

But further error is alleged. As it respects the operation of the act of limitations, every decision, every construction on the law, is most important, for it extends to every part of the State, and embraces the rights and possession of every man. John H. Powel, or those under whom he claims, was in possession of a part. This is admitted by the plaintiffs in in error, for Brown and Hall were his tenants, of whatever they leased, be it more or less, during the time in which the limitation would run. As they entered originally, without colour of title, on the deeded lands of the defendant in error, they were disseisors; for a survey puts the owner in possession. Their seisin then could extend no further than their actual, exclusive, occupation and possession; for the acts of a wrong doer must be construed strictly, because he claims a benefit from his own wrong. There would appear to be no clearer principle of reason and of justice, than this, that if the rightful owner is in the actual occupancy of a part of his tract by himself, or tenant, he is in the constructive and legal possession, and seisin of the whole, unless he is disseised by actual occupation and dispossession. If this were not the law, the possessor by wrong, would be more favoured than the rightful possessor. Here are two, each in actual possession and occupation of part of a surveyed tract, the owner, and an intruder. Who then is in possession of the part not occupied by inclosure by either ? The man who has no right but by disseisin of a part, or he, who is in thé actual occupancy of a part, and the rightful owner of the whole ? In this kind of mixed constructive possession, the legal seisin is according to the title. Title draws possession to the owner. It remains, until he is dispossessed, and then no further than actual dispossession by a trespasser, who cannot acquire a constructive possession, which always remains with the title.

The plaintiffs in error have no just cause to complain of the charge of the Court as to this act. Where a man claiming by improvement enters on the land of another, and has not his pretensions marked out by lines or a survey, he is only protected so far as is covered by his buildings and improvements, if there is neither survey made, nor lines, nor boundaries of such improvement. His seisin and possession do not extend beyond his actual occupancy by inclosure, and exclusive possession ; it is difficult to conceive how the protection by limitation could extend further, and protect possession which only exists in the imagination and mind of the improver, and has assumed no visible, notorious, corporeal, tangible substance.

One enters on a corner of three tracts owned by different persons ; if his constructive possession extends, as has been contended, ,to all that a legal settlement on the vacant lands of the Commonwealth would entitle such settler to, and has not defined his boundaries by notorious and visible marks, by some positive possession, which of these tracts will his constructive possession embrace ? which of these owners is to lose his land by the bar arising from the limitation ? The election would remain with the trespasser. He might set his heart on the whole of any one of these tracts, or take a part of the three, and thus aman be disseised of his land by an adverse possession, of which the utmost circumspection can give no notice by a notorious possession, which did not exist in facts

The Court wish to be understood as not giving any opinion, how far one entering on the lands of another, without official right, but merely claiming by right of possession, is protected by limitation beyond his actual inclosures, though he has lines run or a survey made, and his boundaries as-c'ertained. The plaintiffs in error have not supported any of the objections to the opinion filed, and judgment must, therefore, be affirmed.

Judgment affirmed.  