
    [Pittsburg,
    September, 1822.]
    COOPER and another against SMITH.
    IN ERROR.
    In an action of ejectment to which the general issue is pleaded, it must appear, that the defendant dispossessed the plaintiff, or was in the actual possession of the land, or the plaintiff will be defeated.
    The return of the sheriff under the act of assembly of April 1.3th, 1807, is only pri-ma facie evidence of the possession of any defendant, whether his name be in the .writ of ejectment, orbe added by the sheriff; and such defendant, may rebut it, by showing that he' was not in posséssion.
    The act of assembly of March 11th, 1784, authorising John Sumral to establish a ferry over the Youghiogany river, did not vest a right in him to land upon the landing of any persons without their consent.
    A possession to prevent a recovery, or vest a right, under the statute of limitations, ' must be actual, continued, adverse, and exclusive. An easement claimed out of the land of another, can never be the subject of such limitation, for it is not constant, exclusive, and adverse ; but a continued, exclusive possession and enjoyment, with the knowledge and acquiescence of the owner of the inheritance, for twenty-one years, would be evidence from which a jury might presume a right, by grant or otherwise, to such easement.
    
      Bela Smith, the defendant in error,
    
      brought an ejectment in the Common Pleas of Westmoreland county, against the plaintiffs in error, Robert Cooper and John Robb, to recover -a piece of land, bounded on the Youghiogany river, and included within the limits pf Smith’s survey. The writ was served upon Robb, who pleaded not.guilty, with leave to take a special defence; - and Cooper was admitted as a defendant, arid pleaded' “ not guilty, with leave to take a special defence,” and took defence ■“ for a ferry across the Youhio-gany river, where the great road from Somerset through Mount Pleasant suARobbstown to Washington, in Pennsylvania, crosses said river at or near the lands mentioned in the writ; and also, for a landing-place for the boats and craft used at said ferry, on . the south side of the river, being 50 feet in length on the beach of said river, and extending 10 feet from said river along said great road.” Upon the trial, at a special court held by President Roberts, Smith gave in evidence a location, No. 3305, for 300 acres of land, by Francis Allison, Jun. dated April 3d, 1769, for whom a survey was made, including 1945 acres of land, on the 32d.May, 1770, upon which survey a patent issued to Allison on the 34th of February, 1783. He also gave in evidence the will of Allison, dated 9th May, 1813, and articles of agreement between the executors of Allison and himself, dated 36th September, 1815. He then produced Joseph Vanldrh, a witness, who testified, that he had been called upon by Isaac Robb, in 1804, to survey the land, that Robb showed him a poplar stump for a corner, and he found the line's, which were too long, the lineN. 10 dégrees-E. 96 perches, measuring 1095 perches, that there was a fence in the division lines between Sumral and Allison. Witness knew the land since. 1800, and for 10 years before. II. Bartlett. lived in Allison’s place about 3Ó years ago, and S. Seed lived on it in 1800. Witness ferried from both sides for about two years at that time. One Me Beath then came there, and was the tenant of Sumral as well as of Allison, who used the ferry for a year and an half or two years. Iiv 1804 witness rented the place from judge Young, who was Allison’s agent, and the tenant of witness ferried some during that time. It was not then considered of any great consequence, and McBeath got tired of it and gave it up.' In 1805 witness leased tg one Green who lived there a year, and, witness kept the ferry and used it on both sides. Isaac Robb lived on Sumral’s land in 1806, and witness kept the ferry in 1805, 1806, 1807. W. C. luhen rented of Judge Young, and left the place about 1814 or 1815, he ferried a good deal, and there was much contention about it; Sumral always claimed the Fort field, and showed witness a copy of Allison’s patent, and seemed satisfied the claim went to the river. The Sum-ral’s used the ferry when Bartlett lived there. The great road from Robbstown to Williamsport and Washington crosses this ferry, and it was travelled as a public road, when • witness first knew it, and it has not been since materially altered at the landing. The Sumral’s were away in 1798, and then one Shank ferried, and one Purly in 1799; they lived in the ferry-house at Robbstown. McBeath lived in Sumral’s house in 1798, and rented Sumral’s property from Sumral, and Allison’s from Judge Young. Robb w;as constantly bringing suits against Luhen for ferrying, and always succeeded. McBeath occupied the ferry in 1802 and 1803,. and in 1805, 1805, 1806, and 1807, witness occupied both sides, and lived on the Robbstown side, and McBeath On Sumral’s land.
    
      Andrew Robertson, a witness,.produced by Smith, testified, that in 1775, Sumral ivas said to be a tenant under one Miller. That Bartlett, who claimed under Allison, lived on Allison’s land in 1791 or 1792, being the first man who had a house there, he stayed till 1794, when he died. Sumral rented the land from AUispn in 1798, and occupied the ferry when Bartlett lived there. In 1775 Sumral lived on the land adjoining to' Allison, and then kept a canoe to take people across, and it was then called Sumral’s ferry; he remained there and kept the ferry until he died, sometime about 1794, and his heirs remained there and kept the ferry for some years after. McBeath then lived there and kept the ferry. One Isaac Morgan occupied both sides of the ferry, and after him John Robb lived in Sumral’s house and occupied the ferry. It had generally been known by the name of Sumral’s ferry ever since witness knew the country. John Robb settled there 5 or 6 .years ago, and no one ferried on that side since he went there, except himself or those who held under him. One Shroeder rented from Allison about 4 or 5 years ago, and Luhen ferried under him. Robb and Luhen disputed about the ferry, and Robb has held it ever since Smith bought. John Orr testified, that Bartlett first settled, on Allison’s land, which Sumral had occupied before, but Bartlett 
      never occupied the ferry. John Robb and Luken had a dispute about it, they both lived there at-the same time, and witness had crossed in both their boats, but did not know whether Robb claimed it himself; he lived in Sumral’s house. One yankirk once occupied the ferry and lived on the Robbstown side chief part of the time. Witness first knew Sumral in 1786, he then lived on the land adjoining Mlisón’s and occupied the ferry, which was always called Sumral’s ferry.
    
      William Campbell testified, that Sumral claimed the ferry, and that he had known it by the name of Sumral’s ferry more than ■thirty years ago, that Sumral then lived on the land adjoining Dr. Mlison’s, and occupied the ferry.
    
      James Murray testified to Robb’s claim, and that when he made a survey for Robb, it was objected to by Cooper, who said he was agent for Sumral, and that Robb had no title.
    The plaintiff then gave in evidence the record of ah action of ejectment, brought in the year 1798, by Benjamin Davis, to- recover 500 acres of land* Davis’s claim embraced Sumral’s land, and great portion of Dr. Mlison’s, then occupied by his tenant, the widow of Bartlett. Dr. Mlison was made a co-defendant to this action, in which the defendants had a verdict. He also gave in evidence three letters from John Sumral to Dr. Mlison, dated October 4th, 1786, Jlptil 8th, 1789, and June 18th, .1791, in the first bf which he referred to the old location, and in that of 1798, said, he had a separate patent for the ferry.
    On the part of .the defendant, the act of assembly of 11th March, 1784, (2 Dal. Laws, 175,) was relied upon, and John Bedsworth testified, that he knew Sumral’s ferry since Sumral first used it, that he kept 'it, and it was his, while he lived* When witness came there in 1769, there was no ferry. Sumral came there after that time. Witness could not say who had possession after Sumral’s death, but he knew of Luhen being there.
    President Roberts charged the jury in substance as follows : “This is an ejectment for a piece of land bounded on the Youhio-gany river, and embraced within the plaintiff’s survey. That the plaintiff has exhibited a clear legal title by location, survey, and patent, is' not controverted, but admitted. This case, as has been stated on the part of the defendant, lies within a- narrow compass; and the candour with which the defence has been conducted, so narrows the ground, that it results in a question of law, upon which 'it is the duty of the court to give an opinion. There is ■ no doubt but that the land embraced within the plaintiff’s survey belongs entirely to him, and that such survey extends to the river, cannot be controverted. The defendant claims no part of it, but he claims an easement in it, i. e. a right to land boats upon it, and to pass through a part of it. He founds his claim to this easement upon the statute of limitations — in other words, he says, he has had such a long. uninterrupted possession as that statute will protect. Now where is the evidence to establish such a claim? Does the evidence show any claim-set up,’ or even pretended, by Sumral to a right of way over the lands of Dr. .Allison? Does he o.laim the land itself, or an easement on the lands of another? I refer you to his letter of the 4th of October, 1786, in which he notices the old location; to his letter of 1789, where he mentions his having a separate patent for the ferry; and to the letter of 18th June, 1791: In 1798 a suit was brought by Benjamin Davis for five hundred acres of land, embracing Sumral’s land, and- a great part of Dr. Allison’s, then occupied by his tenant, the widow of Bartlett. ■ Dr. Allison was 'made a co-defendant, and the verdict was for the defendants. The statute of limitations was intended for the repose of society, in order that where there has been a long uninterrupted possession, it should not be disturbed. But to protect a possession under this act, it must be an actual, not a constructive possession — and so of an easement — the actual and uninterrupted use of it, as in the. cases quoted of ancient lights, upon, which subject questions frequently arise in ancient and crowded cities, where the confined space which persons may have for building, renders it- desirable for persons to have windows opening, into- their neigh-' hour’s lots. This privilege is sometimes purchased; sometimes, perhaps, gratuitously granted. However this may be, if persons owning the grounds adjoining such • buildings, suffer the windows open into their ground, to remain open for 21 years, a reasonable presumption is afforded, that a privilege has been granted; and after such a lapse of time, and constant acquiescence, the law ■ will not suffer the enjoyment of it to be disturbed. Now what kind of possession had Sumral ? As to the ferrying across the river, he had a right to do it, and the act of assembly of March 11th, 1784, sanctioned that right; but I cannot conceive that the act of assembly has any bearing. It is said that the legislature have a right to regulate ferries — be it so — they have also a right to regulate pedlars, public inns, &c., but no legislative act authorises one man to establish a ferry on another man’s land, to land boats upon it, and pass through it,, any more than they could grant -to a pedlar a right of way • through the lands of another man, or authorise the establishing of a public house on the land of another, against his consent. Sumral might lawfully ferry and land his boats in the public road, but if he landed upon the land of another, without his consent, he was a trespasser. ”
    Upon this charge, to which the defendant tendered a bill of exceptions, which was sealed by , the court, the jury found for the plaintiff.
    The plaintiffs in-error assigned the following errors.
    1. That a writ of ejectment will not lie-for an easement, or mere incorporeal hereditament.
    
      2. The court ought to have directed the jury, that the statute of limitations would protect the defendants.
    ' 3; The court ought to have directed the jury, that they, might, and ought to presume a grant of á right to land boats, on the margin of the river.
    4. The court ought to have directed the jury, that the length of of possession was in law sufficient from which to presume a grant.
    
      Alexander, for the plaintiff in error.
    A writ of ejectment will not lie for an easement, ,nor for any incorporeal thing, Lefevre v. Lefevre, 4 Serg. fy Razóle, 243. Blade’s Lessee v. Hepburn, 2 Yeaíés, 331; The defendants pleaded, “notguilty, with leave to give in evidence the claim of an easement;” the trial "was therefore upon that issue, and the judgment was, to recover the easement. The second,third, and fourth errors assigned may be reduced to one, viz. that after the length of time we have .enjoyed this easement, a grant should be presumed, Mayor of Kingston v. Hull, Eldri.dge v. Knott, 1 Cowp. 102, 214. Prevost v. Gratz, 6 Wheat. 504. Phil. Evid.. 119, 120, 121, 122. The act of assembly of 13th March, 1782. (2 Hall. Laws, 57,) establishing ferries over the Youghiogany and Monongahela rivers, and the- act of 11th March, 1784, authorising. John Sumy alto establish a ferry over the Youghiogany river, (2 Hall. Laws, 175) declared those rivers to be public highways.4 It is matter of law what circumstances will justify the presumption of a deed. Stoever v. Whitman, 6 Binn. 416.
    
      Foster, for defendant in error.
    No questions were proposed to the court upon which to charge the jury. This ejectment was brought for a tract of land; the defendant, Robb, pleaded “not guilty,” and afterwards Cooper was admitted a defendant, and took defence for a ferry across Youghiogany river, for which part defendants say they are not guilty. The act of assembly makes the sheriff’s return prima facie evidence of possession. It is not pretended than an ejectment lies for an' easement; this ejectment was for land; and the sheriff’s return is evidence of possession by the defendants, one of whom, Robb, claimed part of this land, for he had a survey on it, and he was the tenant of Cooper, the agent of Sumral. Cooper was admitted to defend as landlord, and by the provisions of the second section of the act of April, 13th, 1807(4 Sm. Laws, 476,) admitted himself to be in possession. It is well settled that an ejectment will lie for a highway, and the sheriff may deliver possession subject to the right of way. Run. Eject. 130. The defendants objection to the charge of the court is, that the jury were not directed to presume a grant from Dr. Allison. It is impossible to know what the facts were, and the court could only have said, that if they believed certain facts, they ought-to presume a grant. In 1789 Sumral rented of Dr. Allison, and held till 1791, previous to which time the ferry had been only with a canoe. In 1791, 
      Bartlett became Allison’s tenant, and he, or his widow, remained on the land till 1799. The court was not requested to charge on any point, and it is to be presumed that the judge stated Has facts correctly; taking, the evidence as we have it, the court charged on the law correctly.
    
      Alexander in reply.
    The contest between the parties was exclusively concerning the easement claimed by the defendants. We know nothing of any survey made by Robb, and the record does not show it. ■ The ejectment was against Robb; the sheriff returned “ served,” and Cooper came in as landlord arid pleaded not guilty as to a certain part, in which he claimed an easement. Not guilty does not confess possession. There was not title to land in issue, nor was there a judgment for land.. The plaintiff ought not to have gone to trial upon such an issue, and there has been a mistrial. The judge said, the cause was narrowed to a question of law, on which it was his duty to charge the jury, and, although not requested, if he charged wrong, it is error. The question is then, whether from the evidence a grant to Robb ought not to be presumed. Robb’s claim commenced in 1770, and continued till 1808 or 1809, and Sumral in 1808 or 1809, wrote to Allison that he' claimed the ferry under the act of assembly. In 1803 or 1804, Judge Young, as agent for Allison, leased the land, but did not interfere with the ferry, which he never leased.
   The opinion of the court was delivered by .

•DuNCAN, J.

The action of ejectment is one of possession; and it is no bar to a recovery that another possesses a right of way, or other easement, for the owner of the soil may maintain an ejectment for land over which a highway is laid out; because,, though the public have a right to pass over it, yet the freehold and all the profits belong to the owner, and he may use it in any way not inconsistent with the public right or easement. - Chester v. Alker, 1 Burr. 138. 145. Curtelyou v. Vanbrunt, 2 Johns. 357. Jackson v. Hathaway, 15 Johns, 447. The plaintiff below sued to recover the possession of a certain described tract of land, the right to which is admitted to be in him, If the defendant did not disposess'the plaintiff; if he was not in the actual possession; on the general issue, the only plea in ejectment, not guilty,” he might have defeated the plaintiff; for the allegation in his writ is, that the defendant has in his actual possession,” &c. The return of the sheriff, by the act of 13th April, 1807, is made evidence of such defendants as are marked served by the sheriff, being in actual possession of the whole or part of the premises, and this whether their names are in the writ, or added by the sheriff, on fining them in possession; but this is only prima facie evidence, and the defendant may rebut.it by showing, that he was not in possession. This was a very necessary amendment of the law; for under the ancient form of ejectment, the plaintiff, though, defendant confessed lease entry and ouster, was frequently taken by surprise by a defendant calling on him to prove his possession. On the trial, the defendant, Robb, appeared, and pleaded not guilty, with leave to take a special defence. When Cooper, the landlord, was admitted to become a defendant, he very specially defends as for a ferry on tire Youghiogany river, where the great road from Somerset intersects the Mount Pleasant and Robbstown road, to Washington, Pennsylvania, and crosses said river, at or near the land mentioned in the writ; and also, for a landing place for the boats and craft of the said ferry, on the south side of the said river, being fifty feet in length up and down the said river, and extending-ten feet from said river along said great road. This right of way and of landing on the ground of another, is claimed, first under tile act of 11th March,, 1784, giving John Sumral a right to ferry across Youghiogany river. The act contains this clause, ■“ Provided always, that nothing contained in-this act shall be construed to vest a right in the said John Sumral, his heirs or-assigns, to land any boat or boats upon a landing belonging to any other person or persons, without their consent first had and obtained;” and 'all the acts of assembly vesting ferries in particular persons, show the uniform opinion of the legislature to have'been, that to enable a person to keep such ferry, he must either hold the ground where the landing is made, or obtain the consent of the owner of the land for that purpose. In Chambers v. Furey, 1 Yeates, 167. when the right to land and receive freight on the lands of another,' on the banks of a navigable stream without his consent, was first agitated, this very act authorising Sumral to keep a ferry, was relied on as evidence of legislative construction, that.there is no right, custom,' or prescription, in Pennsylvania, by which one man can land or receive freight, on another’s freehold, on the , banks of a navigable river, without his consent, even though it be on a public highway, SumraVs appears to be the first legislative act granting a right to a ferry. An act passed the same day, vesting a ferry over the' Monongahela river, in John Ormsby, with a special proviso as to landing boats on lands belonging to others without their consent first obtained, and every law passed since contains a similar .clause. It would be a violation of the constitution to deprive the owner of the soil of this right, and the legislature have always carefully guarded against such construction by the most explicit declarations. The right to the bed of a navigable river is presumed to belong to the commonwealth, but the right to the adjoining lands vests in the owner of the soil; hence arises the right to wharves in the.city of Philadelphia, and other commercial ports — no one can use them without making compensation to the owner. The place where the landing was, if a public highway, in an.action of trespass would not be a justification. The position of the court, that Surrtral might lawfully ferry and land his boats On the public road, was erroneous, for this was the very question in

i Chambers v. Furey; and C. J. M‘KeaN and! Justice Yeates decided, that the dedication of ground for the purposes of a public road, gave no right to others to use it without the consent of the owners, for the purposes of landing or receiving freight. ' There are few ferries whose landing place is not a public highway; ferries would become a property in common, subject to continual strife, and where the strongest must ever prevail. ■ The common law to prevent this confusion, assigns the-exclusive right of all property capable of being so enjoyed, to some determinate owner. It has assigned to the owner of the soil, the right of landing on his own soil, on the banks of all navigable rivers. The late proprietors of Pennsylvania claimed a right by prerogative to. grant patents for ferries; but they never did grant a patent where the party was not possessed of lands-on both sides of the water, or at least had not the permission of the owner of the landing. The defendant sets up as a bar the act of limitations — 21 years’ possession. The possession to prevent a recovery, or vest a right in the possessor, must be actual, continued, exclusive. An easement claimed out of the land of another, can nev'er be the subject of such limitation, for it is not constant, exclusive and adverse. Indeed the counsel for the plaintiff seemed to abandon this as untenable, and to rely on the 3d and 4th errors assigned, which are in fact the same, and form but one point. Ought the court to have directed the jury from the enjoyment of this way and landing, proved by defendant, to have presumed a grant of any easement? And if the plaintiff in error had given any evidence to show, a continued exclusive possession and enjoyment, with the acquiescence of the owner of the inheritance, for 21 years, by way of analogy as to the time of the statute of limitations, the court should have left this to the jury as presumptive evidence of a right, by grant or otherwise; and unless contradicted or explained, the jury ought to believe it. Length of time cannot be said to be an absolute bar like a statute of limitations, but is only a presumptive bar to be left to ¿jury. This presumption of grant from long usage, is for the sake of peace and furtherance of justice. It cannot be supposed, where there has been'a long exercise and possession of such right, that any person would suffer his neighbour.to obstruct the lights of his windows, or render his house uncomfortable, or to use a way for so long a time with carts and carriages, unless there had been some agreement between the parties to that effect: but this principle must always be taken ,with this qualification, that the possession from which a party would presume a grant or easement, must be with the knowledge of the person seized of the inheritance, 2 Saund. 175. The evidence in this case is very far from proving any such possession. It does not possess one ingredient of it. It was not a continued, successive, uninterrupted enjoyment by Sumral and those claiming under him. He was the agent of Jl'llison the owner for some time; his tenant for some time; other tenants of ¿lilison’s occasionally used the ferry, and there was at other times contention respecting it Besides, Robb set up a claim directly adverse, had a survey made cutting off a small strip, under the idle pretence that Allison’s survey did not come down to the water. That confining him to his distances on his survey, and to his marked lines, there would be a vacant spot by the water side. The surveyor marks the trees on the bank, but includes all to the water, and so represents and returns it. The riyer here is the boundary of Allison’s survey. The patent describes this as his boundary; the right of Allison is acknowledged by all,' and it is admitted by the special defence. Nor is there a spark of evidence to be left to a jury to presume a grant, either to Sumral or any claiming under him; but it excludes all presumption of agreement, or grant from Allison the owner: he never witnessed these intrusions, he never saw the land, he never acquiesced in these usurpations. Every act of Sumral’s was a trespass; it was contrary to the provisions of the act, vesting in him the right of ferry. The repetition of the trespass did not give a possession protected by the act of limitation. It might as well be contended? that a man entering into the woods of another, and cutting and carrying away his timber, and continuing the practices for 21 years or more, thereby acquired a right to the land by these vagrant acts of repeated trespass. The court are therefore clearly of opinion, that the plaintiff has failed in supporting any of the errors assigned. It might have been sufficient to have decided this case on one ground, that if the plaintiff in error had a right of easement, the only right which he claims, still the plaintiff below had the right to the soil and the possession;' but they have considered it proper to give an opinion on all the errors assigned.

Judgment affirmed.  