Mr. Justice Trunkey
delivered the opinion of the court
[363] In 1864 the plaintiff purchased the David Kennedy tract No. 1434, at treasurer’s sale, sold for the taxes of 1862 and 1863, assessed as unseated. This tract was warranted in 1792, surveyed in 1793, and patented to Kobert Kennedy in 1815. It does not appear that the plaintiff occupied it or ascertained its location until after the alleged trespass by defendants. Before the cutting of the timber, on September 27th 1870, he procurred a warrant on which he had a survey, and in October of the same year obtained a patent for a tract of land containing three hundred and forty-one acres sixteen and four-tenths perches and allowance, bounded on the west by the Jonathan B. Smith tract, and on the east by tract No. 1434. The defendants owned the eastern part of the Jonathan B. Smith tract, No. 5862, warranted in 1804, and surveyed in 1808, one of them having purchased the same prior to 1859. If the testimony on their part is true they bought and continuously claimed to the same line which the plaintiff made the eastern boundary of his said survey, namely, the west line of the David Kennedy tract. The plaintiff now says he located a new warrant on land which he already owned, and in ignorance of the facts fixed the boundary thereof forty perches east of the line between his and the defendants’ lands, lie therefore demands, in case the jury find he did own the land prior to said location, three times the amount of actual damage done by the defendants in cutting and converting the timber outside the line of said location.
In view of the foregoing facts the court instructed the jury that if they found for the plaintiff for the timber cut between the line of the tract No. 5862, and the line of his said survey, he was entitled to treble damages under the Act of March 29th 1824, P. L. 152. That statute in plain terms makes one who cuts timber on another’s land and converts it, without the owner’s consent, liable to treble damages although he had no knowledge that it was not on his own land: Watson v. Rynd, 26 P. F. S. 59. The ruling of the learned judge was clearly right, unless the plaintiff, within the intendment of the statute, consented to the cutting and taking of the timber. Consent may be shown by acts as well as words. As the man who cuts timber is bound to know it is .on his own land, or that he has the owner’s permit, so the owner of timber land is bound to know where it is and to do no act to mislead an adjoining owner, or adverse claimant. He shall not mark a line on the ground and ostensibly invite a claimant to cut up to that line, and then recover three times the value of the timber. It is not the purpose of the statute to enable him to sell his timber at such prices. Its object is the prevention of willful or^ careless cutting of another’s timber by at once punishing the wrongdoer and amply compensating the [364] owner. Had tlie plaintiff known that tract No. 1434 was located where he now claims, and that the defendants claimed title to the same land, what interpretation would be given to his act ? None other than that he defined his lines and attempted to perfect his title. Had there been a vacancy between tracts 5862 and 1434, as he believed, he would have no right against anybody for cutting timber without the lines of his survey. As respects others the plaintiff’s acts must be treated as if he had known his rights. He who misleads another by positive acts as to the extent of the claim, shall be taken as inviting or consenting, and it makes no difference that he was ignorant of his title or of the location of his land. The defendant’s second point should have been affirmed. That portion of the charge set forth in the seventh assignment, though correct, should have been accompanied by instruction that the acts of the plaintiff, in connection with the uncontroverted facts, evidenced that he gave liberty to the defendants to cut up to the line that he had marked on the ground. Were these acts not shown by written evidence, and other facts virtually conceded, the instruction should have been that if the facts assumed in the second and third points of defendants were true they were not liable for treble damages.
Although the plaintiff’s conduct was equivalent to such consent as in good conscience ought to bar his right under the statute to recover three times the value of the timber, it did not defeat his title to the land, of which the timber was a part. Constructively, the party who has good title is in possession of unimproved land, and the evidence does not take this case out of the rulé. The defendants’ fourth point was rightly refused.
We think the circumstances of this case required affirmance of the defendants’ sixth point' namely, “If the location of the David Kennedy, as claimed by the defendanfs, has been recognized as the proper one up to and about the time this suit was brought — by the surveyors and others whose business or interests led them to look for it — this constitutes evidence bearing on the location of the survey, especially after the lapse of .so great a time as to render it difficult to prove the existence of tiie original landmarks.” The facts in this point are not assumed, and the jury would have been warranted in finding them. A number of surveyors, also persons interested, had had occasion to look for the location of the tract, and if all, not part, including the plaintiff himself, had so recognized its location it was evidence to consider, its strength or weakness depending on the other evidence in the cause. If there were no other evidence this would determine the location, and would be admissible for the same reason that hearsay of deceased persons is evidence in case of an old boundary. Because there is other evidence this [365] should not be excluded. Except the denial, the remarks of the court in answer to the point were entirely correct.
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Mr. Justice Trunkey
delivered the opinion of the court
[363] In 1864 the plaintiff purchased the David Kennedy tract No. 1434, at treasurer’s sale, sold for the taxes of 1862 and 1863, assessed as unseated. This tract was warranted in 1792, surveyed in 1793, and patented to Kobert Kennedy in 1815. It does not appear that the plaintiff occupied it or ascertained its location until after the alleged trespass by defendants. Before the cutting of the timber, on September 27th 1870, he procurred a warrant on which he had a survey, and in October of the same year obtained a patent for a tract of land containing three hundred and forty-one acres sixteen and four-tenths perches and allowance, bounded on the west by the Jonathan B. Smith tract, and on the east by tract No. 1434. The defendants owned the eastern part of the Jonathan B. Smith tract, No. 5862, warranted in 1804, and surveyed in 1808, one of them having purchased the same prior to 1859. If the testimony on their part is true they bought and continuously claimed to the same line which the plaintiff made the eastern boundary of his said survey, namely, the west line of the David Kennedy tract. The plaintiff now says he located a new warrant on land which he already owned, and in ignorance of the facts fixed the boundary thereof forty perches east of the line between his and the defendants’ lands, lie therefore demands, in case the jury find he did own the land prior to said location, three times the amount of actual damage done by the defendants in cutting and converting the timber outside the line of said location.
In view of the foregoing facts the court instructed the jury that if they found for the plaintiff for the timber cut between the line of the tract No. 5862, and the line of his said survey, he was entitled to treble damages under the Act of March 29th 1824, P. L. 152. That statute in plain terms makes one who cuts timber on another’s land and converts it, without the owner’s consent, liable to treble damages although he had no knowledge that it was not on his own land: Watson v. Rynd, 26 P. F. S. 59. The ruling of the learned judge was clearly right, unless the plaintiff, within the intendment of the statute, consented to the cutting and taking of the timber. Consent may be shown by acts as well as words. As the man who cuts timber is bound to know it is .on his own land, or that he has the owner’s permit, so the owner of timber land is bound to know where it is and to do no act to mislead an adjoining owner, or adverse claimant. He shall not mark a line on the ground and ostensibly invite a claimant to cut up to that line, and then recover three times the value of the timber. It is not the purpose of the statute to enable him to sell his timber at such prices. Its object is the prevention of willful or^ careless cutting of another’s timber by at once punishing the wrongdoer and amply compensating the [364] owner. Had tlie plaintiff known that tract No. 1434 was located where he now claims, and that the defendants claimed title to the same land, what interpretation would be given to his act ? None other than that he defined his lines and attempted to perfect his title. Had there been a vacancy between tracts 5862 and 1434, as he believed, he would have no right against anybody for cutting timber without the lines of his survey. As respects others the plaintiff’s acts must be treated as if he had known his rights. He who misleads another by positive acts as to the extent of the claim, shall be taken as inviting or consenting, and it makes no difference that he was ignorant of his title or of the location of his land. The defendant’s second point should have been affirmed. That portion of the charge set forth in the seventh assignment, though correct, should have been accompanied by instruction that the acts of the plaintiff, in connection with the uncontroverted facts, evidenced that he gave liberty to the defendants to cut up to the line that he had marked on the ground. Were these acts not shown by written evidence, and other facts virtually conceded, the instruction should have been that if the facts assumed in the second and third points of defendants were true they were not liable for treble damages.
Although the plaintiff’s conduct was equivalent to such consent as in good conscience ought to bar his right under the statute to recover three times the value of the timber, it did not defeat his title to the land, of which the timber was a part. Constructively, the party who has good title is in possession of unimproved land, and the evidence does not take this case out of the rulé. The defendants’ fourth point was rightly refused.
We think the circumstances of this case required affirmance of the defendants’ sixth point' namely, “If the location of the David Kennedy, as claimed by the defendanfs, has been recognized as the proper one up to and about the time this suit was brought — by the surveyors and others whose business or interests led them to look for it — this constitutes evidence bearing on the location of the survey, especially after the lapse of .so great a time as to render it difficult to prove the existence of tiie original landmarks.” The facts in this point are not assumed, and the jury would have been warranted in finding them. A number of surveyors, also persons interested, had had occasion to look for the location of the tract, and if all, not part, including the plaintiff himself, had so recognized its location it was evidence to consider, its strength or weakness depending on the other evidence in the cause. If there were no other evidence this would determine the location, and would be admissible for the same reason that hearsay of deceased persons is evidence in case of an old boundary. Because there is other evidence this [365] should not be excluded. Except the denial, the remarks of the court in answer to the point were entirely correct.
We are of opinion that it was error to deny the defendants’ seventh point. George Kramer testified that he bought the land as one body, including the eastern part of the Smith survey, No. 5862, and a small part of the David Kennedy tract, No. 386 ; that the boundaries were described and shown to him by Kuntz and Bailey, and extended to the David Kennedy line on the east, including the land in dispute within his lines; that there were four or five acres cleared, a house, stable and fruit trees, also a saw-mill on the land at that time ; that the improvements were partly on both tracts, and he held the land together as one property; that in 1860 he changed the land from the unseated to the seated list and paid the taxes for the years 1861, 1862 and 1863, and for years subsequently. If these were the facts, a sale of part of the land as unseated for the taxes of 1862 and 1863 vested.no title in the purchaser. Kuntz owned the land, as he says, for several -years prior, had it surveyed by David Ferguson, the east line being where the defendants now claim, and the land now in dispute was within his lines. Both Kuntz and Kramer claimed to the Kennedy tract, No. 1434, they did not include any part of that tract knowingly, and contend that the land in dispute is part of the Jonathan B. Smith tract. The real question is, whether the land in dispute was actually included within defined boundaries, the whole being assessed as seated. This would not be alone determined by the number of acres in the assessment, but the quantity would be a fact to consider with other testimony, having greater or less weight according to the circumstances. Very likely the court was of opinion that if Kramer had mistakenly claimed to the east line of tract, No. 1434, thereby including it in his body of land, that did not make it a part of his seated tract extending only to the west line of No. 1434 ; and that, if said tract is located where the plaintiff claims, it is vested in him by the tax sale and treasurer’s deed. Nevertheless the defendants were entitled to an affirmance of the poiut, though with full and proper instructions they might well have found that the land in dispute is part of the David Kennedy tract, No. 1434, and that said tract was rightly assessed and sold as unseated.
Judgment reversed and venire facias de novo awarded.