The opinion of the Court was delivered by
Gibson, C. J.
Though trover is said not to be a proper action to try title to land, it is certain that it may b.e supported for the price of what was a part of the freehold, converted after severance from, it, if the wrong-doer were not in the actual and exclusive possession. Such appears from Player v. Roberts, 1 Jones 243, to be the law of the English courts, and if we regard no more than the naked point determined by our own, we shall see that our decisions, though full of jarring dicta, entirely agree with it. In Mather v. Trinity Church, which was thefirst of them, it was ruled that trover for stone and gravel dug from a quarry, lies not by one who has the right of possession, against one who had the actual possession. Next in Baker v. Howel, it was ruled that assumpsit for money had, lies not for the price of sand sold from a bar of which the defendant was found to be in possession. Finally in Brown v. Caldwell, the same principle was asserted in respect to replevin for slates quarried by a party who was an occupant. So far both decision and dicta agree, and it is therefore to be taken for settled, that such an action lies not against a party who was in actual possession at the time of the severance. But no court has adjudged, nor can it be maintained on principle, that it lies not for a party out of such possession against a casual trespasser. Such a decision would disaffirm the well founded principle, that legal seisin carries the possession with it wherever there is no adverse possession to displace it; and as .there is no adverse possession of trees without possession of the land on which they grow, the property and possession of them as chattels, at the moment of their severance by a casual trespasser, are united in the owner of the inheritance. Trover is .not. so exclusively founded on possession as trespass; and if, as is universally conceded, a constructive possession of unoccupied land, is sufficient to support the latter for the felling of a tree, why may it not support trover for the asportation and conversion of it? The difference between the actual and constructive possession of a plaintiff, consists not in an effect peculiar to either, but in.the nature of the evidence necessary to establish it. The former is susceptible of proof by oral testimony, while the title must be produced to establish the latter; and hence a supposed locality of any action [175] depending on it; a ground of objection not open to the party in this instance, as the action is in the county where the land lies. Of the incongruity of making trover a local action, and of the consequential inference that, being essentially transitory, it must be sustained, if at all, indifferently in the county and elsewhere, I shall speak when I shall have spoken of the defendant’s claim to have been in the actual possession. At present I admit, that if the action might not have been as well brought out of the county as within it, it can not be maintained.
Why should the defendants’ undisputed possession of their own land be extended to the locus in quo? Even colourable title to it they had not. The-Victoria works were started in 1829, and notwithstanding the absence of pretext for claim, this tract was used as woodland, from the first, as if it was a part of the domain. Wood was cut on it for coals and for rails, by direction of the manager, who also disposed of bark from it at a neighbouring tannery; subsequently to which, the estate was seized in execution, and sold to the defendants, by boundaries which include the tract in question; and having thus received it, they cut the wood in question. A house that once stood on it had fallen doWn; and there was no clearing on it or enclosure whatever. Besides, during all the time mentioned, the plaintiff’s intestate had paid the faxes. Such are the few and simple elements of what has been called a case of actual possession. Hapily we have a standard for the measurement of it. “ When I speak of possession,” said Mr. Justice Duncan in Brown v. Caldwell, “ I mean an actual occupation; not a bare, solitary, trespass by an intruder, but ah actual, visible, notorious occupancy.” But is there a difference, as regards occupancy, between a solitary trespass and repeated trespasses? None has been taken in any book of authority, and none can- be taking in reason. There could be no action of trespass with a continuando, if an ouster is necessarily constituted by indefinite repetitions of the injury. For this reason it is, that the ouster in the declaration in ejectment, was not laid with a continuando/ in consequence of which, it was thought, that mesne profits could not be recovered in that action; for, proceeding on the ground of an ouster, the plaintiff, though he recovered damages for the circumstances immediately attendant on it, could not maintain trespass for' any injury subsequent to it, till he had- regained the possession by the retroactive operation of an entry by process or otherwise. If repetition of á trespass alone, then, does not necessarily constitute an ouster, with what sort of occupancy must it be attended to have that effect? In Johnston v. Irwin, 3 Serg. & Rawle 291, it'was ruled that though residence is not a necessary ingredient of adverse possession,- there must be enclosure and cultivation. This was indeed predicated of possession to raise the bar of the statute of limitations; but why should there not be the same degree of possession, to bar an action for the produce of the soil, that is necessary to bar an action for the [176] soil ilself? Such an occupancy is indefinitely continuous, while the occupancy of a trespasser, who neither cultivates nor encloses, continues no longer than he remains in contact with the soil. But it is supposed that a resident on adjoining land, is in aciual possession of all he uses for his ordinary purposes, according to its kind, as a part of his domain; and in this lies the vice of the argument. Where a particular tract of land is occupied by a resident on it, under a colourable title, his possession of it is co-extensive with the lines of the survey; but it is not admitted that he gains possession of his neighbour’s unoccupied tract by crossing the intermediate boundary to trespass on it. “ It is evident,” said Mr. Justice Yeates, in Gray v. M’Creary, 4 Yates 496, “ that, in a question of boundaries, evidence of possession does not apply with the same degree of force as when the whole of a tract is held adversely against the claimant.” The entire course of the decisions, has been to restrain possession without at least colourable title, as strictly to enclosures in this country, as it has been in England, and the English principle certainly is, that constructive possession is not to be admitted in the case of an intruder; as an .exception to which, nothing gave rise to the notion that it was not universally applicable to lands in Pennsylvania, but our customary law of acquiring title to the lands of the state by settlement, which suggested to those who had entered on appropriated land, the notion of claiming by the statute of limitations, as much as they could have held by an improvement. Such a claim, however, has been constantly disallowed; and there never has been conceded to the possession of a trespasser, in the guise of a settler on appropriated land, without warrant or location, a single incident or feature of an improvement. Now, what difference, as to constructive possession, is there betwixt a settler seated on the tract itself, and one who, seated on an adjoining tract, cuts his rails and firewood on his neighbour’s land as if it were his own. Certainly there is none in favour of the latter, coming in as he does with no design to hold the land by his entry, and taking no subsequent step to acquire it as a settler. If a settler on appropriated land, shall not be deemed in constructive possession of woodland used by him as such, why shall a non-resident? But even constructive possession would ill serve the purpose of defence in an action like the present; for when an intruder is not in actual occupation, the constructive possession is in him who has the right— which, it will be seen, is sufficient to support the action. I grant that such a trespass may be a disseisin to support an ejectment at the election of the disseisee, but it certainly would not constitute a disseisin of him against his will. The books are full of cases illustrative of the distinction. Nor would the trespasser acquire a possession within the protection of the statutes of forcible entry and detainer. Why, then, shall he not answer in trover for the conversion of trees turned into chattels by his trespass? “ The owner of a tract of land in Clearfield county,” said Mr. Justice Duncan in [177] Brown v. Caldwell, “ whose timber has been taken by a trespasser and sawed into boards, follows it to Lancaster county and replevies it in the streets of the city; the doctrine of venues shows that this can not be done.” In Player v, Roberts, however, .the same thing in principle was actually done. “ If,” as he had said in the same breath, “incidentally title in such action may be called i.n question,” why may it not be done in all cases of the sort without regard to the locality; or how can it be called in question in an action of trover otherwise than incidentally? He evidently thought, that it comes into question directly, where it is the foundation of the possession; and incidentally only, when it is the consideration of a contract, which may be sued upon any where, because contracts have no locality. But neither has conversion locality; and title to land may be as much involved in the one as in the other. Nor does it follow that a dispute about the possession depends, in all cases, on the title; the right to the one, and to the other, are different things. Title in an action like the present, by which compensation for a trespass is demanded, and not the land, is not the plaintiff’s case;' nor is it directly put in issue by the pleadings: it is questioned incidentally, if at all, like any other fact introduced by the evidence. It was, in truth, not questioned at all in the instance before us. It is not perceived, therefore, that the doctrine of venues furnishes an objection to a personal action. If it did, it would expose the wild lands, not only in Clearfield county, but in every other on the Allegheny and the branches of the Susquehannah, to pillage, for which there would be no redress. Trespassers on these, are seldom found in the county to answer an action, nor are they often of sufficient ability to respond in damages.; by reason of which, the only efficient remedy of the owner, is pursuit of the property, A temporary saw-mill is put up on the first convenient stream, without regard to tract or survey; and if this is such a possession of the contiguous tracts from which timber is taken in the course of the sawyer’s business, as to prevent the owners from following it in specie, or if they are prevented from doing so, independently of the question of possession, by a supposed locality of the injury, they are left without a practical remedy. Is not the sawyer’s case, in principle, that of an iron-master, who, once in fifteen years, uses an adjacent tract of unseated lapd to strip it of its timber, while he leaves every other act of ownership, such as payment of taxes, to be performed by the rightful owner. The wood is usually coaled on the land; and hence there is said to be at least a temporary pps¡session during the process. But the same may be said of a shingle\aker’s occupancy of his shed, while he works up the product of his trespass.
The true reason why trover or replevin lies not against an actual occupant, is not any supposed locality of the question, but the impolicy of suffering him to be harassed with a separate action for each bushel of wheat consumed, or stick of firewood burnt, on the [178] premises, instead of having the matter settled at once' by an action to recover the possession.' Chief Justice Tilghman glanced at it in Mather v. Trinity Church, where he said the owner might first recover the possession by ejectment, and then recover the mesne profits by an action of trespass. There is substance in a reason like that; but there is only form in an objection on the doctrine of venue, whose general inconvenience is manifest in the efforts of the profession to get away from it. Though all personal actions were transitory at the common law, because, as it was said in Bulwer’s case, 7 Rep. 61, debitum et contractus sunt nullius loci, yet to the intent that debt, account, and all such actions, should be brought in the county where the contract was made, it was enacted by the 6 Rich. 2, c. 2, that if it appeared by the declaration that the action was not brought in the county in which the contract was made, the writ should abate; in the interpretation of which it was held that if the discrepance appeared entirely by the record, it would be error—an interpretation which precluded an advantage from a ’ discrepance between the declaration and the evidence at the trial. .And the inconvenience of the statute is still further visible in the fiction employed to elude it in an action on a foreign bill, bond, or note, which must be described as having been made at the place where it bears date; in regard to which, the,practice has been to state the place truly, and then to aver that it is in the county in which the action is brought, as, for instance, “at Calcutta, in.the East Indies, to wit, at London, in the ward of Cheap.” Much as I dislike fiction in these matters, I would, were it necessary, consent to support an averment that Clearfield county, or any other place, is in the streets of Lancaster, rather than suffer an injury to pass ■without a remedy. In the leading case of Fabrigas v. Mostyn, Cowp. 176, Lord Mansfield said: “There is a substantial and a formal distinction as to the locality of trials. The substantial distinction with regard to matters arising within the realm, is where the proceeding is in rem, and where the effect of the judgment could not be had if it were laid in a wrong place, as in the case of ejectments, where possession is to be delivered by the sheriff of the county; and as the officers are county officers, the judgment could not have effect if the action were not laid in the proper county. The formal distinction arises from the mode of trial; for trials in England being,by jury, and the kingdom being divided into counties, and each county being considered as a separate district or principality, it is absolutely necessary that there should be some county where the action is brought in particular, that there may be process to the sheriff of that county to bring a jury from thence to try it.” After this, is it not too late to insist on the old distinctions by which every thing that savoured of the land was local; as debt for rent when not founded on the contract; debt against the executor of a tenant for life; debt by an executor for the arrears of a rent charge; debt in the debet and delinet against the executor or administrator [179] of the lessee: and a thousand other instances mentioned in Bulwer’s case. An objection on the ground of locality is purely technical, and not to be favoured; for there is nothing inherently local in the trial of title to land; and if .there were, an objection on the foot of it would prevail, in all cases, whether it were incidentally drawn into contest or not. The muniments of it may be produced everywhere with equal facility; and the witnesses to the facts involved in it, as often reside out of the county as within it. The jurors of one county, too, are just as competent in respect of moral and mental qualifications as those of another. But though popular prejudice against a party or a title sometimes makes its locality a grievance, I admit that where the land itself is demanded, the action must be brought in the_ county, and the same thing may perhaps be said of trespass, in -which the issue is, or may be, formally joined on the title. In the case before us, the issue was not on the title; and that it was introduced into the case by the evidence, shows that it was only incidentally involved. ' But the doctrine of locality has been urged for the sake of an argument deduced from its general consequences. No objection was made on that ground in Player v. Roberts; and we are to conclude that it was thought to be untenable. In the case before us, possession from title having been shown, without adverse possession to rebut it, the plaintiff was entitled to recover.
Judgment affirmed.