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as the owner, as to all the world, until | land to the title. Hart v. Vinsant, 6 Heisk. after a judicial decision.”

616. But even in such a case evidence of In Brown v. Caldwell, 10 Serg. & R. 114, title is permitted, “not for the purpose of 13 Am. Dec. 660, it is said: “Replevin is trying the question of title to the land,” not the proper form of action to try title but for the purpose of determining the to land ex directo, though incidentally title question of possession. Id. 618, 619. to such action may sometimes be called in Here it is necessary that we should pause question. In Pennsylvania this action has for a moment, and note the meaning atbeen allowed a great sweep, and to embrace tached to the terms "actual possession” and every question of property. But it is prop-“constructive possession” in the authorities. erty in goods, and not in lands. It is to Of course, it would be idle to attempt a try the title to personal property, and not review of the cases within the limits of a real estate. Replevin will not lie for a tract judicial opinion, so great is their number. of land. Title cannot be decided in an ac But they are collected in 1 Am. & Eng. Enc. tion merely personal and transitory, no Law, 2d ed. pp. 822-830; 13 Am. & Eng. matter whether replevin, trover, or assump- Enc. Law, 2d ed. p. 745; 28 Am. & Eng. sit. Nor can these actions be maintained | Enc. Law, 2d ed. pp. 238, 239; 1 Cyc. Law & by one not in the actual, exclusive posses. Proc. pp. 983, 1125, 1126. An examination sion, whatever his title may be, against one of these authorities, text and notes, will who is in the possession, claiming right. disclose the following: There is some diHere the possession is not vacant. The own- versity in the use of the terms above referred er of the title is in the constructive, actual to, but a substantial agreement concerning possession.

the true test of adverse possession in cases In Page v. Fowler, 28 Cal. 605, 610, it is such as we have before us, wherein it appears said, quoting from Halleck v. Mixer, 16 there is actual possession of a portion of Cal. 579: “The true rule is this: The tract of land by one claiming under color plaintiff out of possession cannot sue for of title defining boundaries. In the first property severed from the freehold when authority cited in the last paragraph it is the defendant is in possession of the prem said: “It is well established that posses. ises from which the property was severed, sion which is necessary to ripen into title holding them adversely, in good faith, un must be actual, and to begin such possession, der claim and color of title. In other there must be an entry which will amount words, the personal action cannot be made to an ouster of the true owner. It must be the means of litigating and determining actual, either of all or part of the land the title to the real property as between claimed, as the same may be held with conflicting claimants."

color of title or without; because construcIn Rees v. Higgins, 9 Kan. App. 832, tive possession follows the title, and there 834, 61 Pac. 500, it is held that it is "not cannot be two possessions of the same land proper

to make the replevin ac at the same time, and the owner, being in tion the means of litigating and determin possession by virtue of his title, remains ing the title to the real property as between until he is disseised by another entering and conflicting claimants."

holding for himself.” 1 Am. & Eng. Enc. The reason underlying all these cases is Law, 2d ed. p. 822. “Mere naked possession that the primary consideration in a replevin without color of title is adverse only to the action is the right of possession, and that, extent of the actual possession or inclosure. as to things severed from the realty, the But an entry into possession under a conpossession of the land at the time deter- veyance from a person having color of title mines the right of possession to such things, is presumed to be made according to the such person being in the adverse possession description in the deed, and his occupancy of the land, and claiming under color of is construed as possession of the entire lot, title; that the court will determine the where there is no actual adverse possession matter upon the right of possession, and of the parts not actually occupied by him.” not upon the title to the land; and finally, Id. p. 824. “A man cannot by mere physicthat in such an action the court will not al means retain land in his exclusive grasp. permit the title of the land to be deter- Possession may be more manifest as to a mined.

part than as to the rest. Therefore it is There is one exception to be noted. This an established rule of law that the actual is: Where neither party has actual posses- possession of a part is the possession of sion of any portion of the land at the time the entire tract or boundary covered by the timber is cut, the right to the possession the occupant's title or claim of title. of such timber must be determined by the What is the extent of his possession is to be title to the land, since the law in that cuse determined by the limits of his title or color would attach constructive possession of the ! of title. An intruder without color of title

is of necessity confined to his mere inclo- | right of the owner to an immediate and sure.” Id. p. 825, notes, quoted from Core actual possession by himself. Sullivan v. v. Faupel, 24 W. Va. 245. “The actual Sullivan, 66 N. Y. 37.” fencing and inclosing of the tract are not, In 1 Cyc. Law & Proc. pp. 982, 983, it is unless expressly required by statute, essen- said: “That an adverse claim to land may tial to constitute adverse possession, but ripen into a perfect title by virtue of the such acts are very decisive in determining statutes of limitations, it is primarily essenpossession and claim of ownership.” Id. p. tial that the possession relied upon be ac828. “Fences are a means by which posses- tual.” On page 1125 it is said: “The gension of land may be taken and held. They eral rule is well settled that where a party are not, however, the only means. There enters, under color of title, into the actual may be an actual possession without fences occupancy of a part of the premises deor inclosures of any kind, if it appears from scribed in the instrument giving color, his other facts and circumstances that the possession is not considered as confined to plaintiff was exercising exclusive dominion that part of the premises in his actual ocand control over the land.” 13 Am. & Eng. cupancy, but he acquires possession of all Enc. Law, 2d ed. p. 749. “When one is in the lands embraced in the instrument under actual possession of a portion of a given which he claims." In a note on page 983 tract of land he will be held, in law, to be in it is said: “Actual possession may consist possession of the remainder, if he holds un- either in an occupancy in fact of the whole der a deed or other color of title and there is tract claimed, or of an occupancy of part no antagonistic or adverse possession.” 13 thereof in the name of the whole, where Am. & Eng. Enc. Law, 2d ed. p. 750. “Ac- there is sufficient evidence of the bounds of tual possession, or possession in fact, exists the whole that is claimed as one entirety, where the thing is in the immediate occu- and the circumstances are such that the pancy of the party, or his agent or tenant.” law extends the possession of the part that 28 Am. & Eng. Enc. Law, 2d ed. p. 238. is occupied to these bounds. This latter "Constructive possession, or possession in may be termed a 'virtual possession,' in orlaw, as it is sometimes called, is that pos. der to distinguish it from the other kind session which the law annexes to the legal of actual possession, which is called 'subtitle or ownership of property where there stantial or pedis possessio. But whatever is a right to the immediate actual posses. terms may be used to give precision to the sion of such property, but no actual pos- subject, the attributes which pertain to an session.” Id. 239. In the notes to the page actual possession belong to it, whether it last cited we find the following: “Con be substantial or virtual. M'Colman v. structive possession is ‘a possession in law, Wilkes, 3 Strobh. L. 465, 51 Am. Dec. 637.” without possession in fact.' Hodges v. In our own case of Hebard v. Scott, 95 Eddy, 38 Vt. 327. . Properly speak- Tenn. 467, 32 S. W. 390, it was held that ing, constructive possession is that posses- "the occupation of part of a tract of land, sion which the law annexes to the title. claiming the whole, under a paper title deM'Colman v. Wilkes, 3 Strobh. L. 471, 51 fining its boundaries, is effective possession Am. Dec. 637. Possession which, as an in- of the whole tract under the statutes of ference of law, arises presumptively from limitation.” To the same effect are Winthe legal title, is a mere constructive posses- ters v. Hainer, 107 Tenn. 337, 64 S. W. 44; sion, and is founded on the existence of title Turnage v. Kenton, 102 Tenn. 328, 52 S. W. in some form. Jeffrey v. Owen, 41 N. J. L. 174; Hunter v. Bills, 3 Tenn. Cas. 97, 101; 260. . . . Constructive possession is | Elliott v. Cumberland Coal & Coke Co. 109 that which exists in contemplation of law, Tenn. 745, 71 S. W. 749. We have one or without actual personal enjoyment or occu- two cases in our Reports which, upon caspation. Newcome v. Crews, 98 Ky. 339, 32 ual reading, would seem to indicate that S. W. 947; Jeffrey v. Owen, 41 N. J. L. 260; there must be an inclosure of the whole Brown v. Volkening, 64 N. Y. 80; Foust v. tract claimed, even when the party claims Territory, 8 Okla. 541, 58 Pac. 728. Con under color of title; but, upon careful readstructive possession is such a possession as ing of these cases in connection with the the law carries to the owner by virtue of his cases cited in them (Pullen v. Hopkins, 1 title only, there being no actual occupation Lea, 741; Hicks v. Tredericks, 9 Lea, 491), of any part of the land by anybody. Mit- it is clear that what is meant is simply chell v. Bridgers, 113 N. C. 63, 18 S. E. 91; that there must be some sort of inclosure Graham v. Houston, 15 N. C. (4 Dev. L.) upon some part of the land, as a house, a 232. Constructive possession may exist fenced field, or other “improvement," as viswithout an actual pedis possessio, where ible evidence of possession, where the land is there is a present right, and the possession capable of such use, and not that the whole is either vacant, or is consistent with the tract of land must be inclosed.

The latest cases we have upon the subject | tual possession in the owner of the title, and of adverse possession are Green v. Cum- no one in adverse possession. It is also berland Coal & Coke Co. 110 Tenn. 35, 72 perceived that the learned justice differenS. W. 459, and Mansfield v. Northcut, 112 tiated this "effective possession" or "virtual Tenn. 536, 80 S. W. 437,—both cited supra. possesion” from technical "actual posses

In the first of these cases it is said: sion” merely for the sake of scientific pre“Where there is no part of the land in cision or logical accuracy of thought, and actual possession, the constructive posses that he not only did not assign to it a difsion is with the party holding the superior ferent office and effect from that belonging legal title; but, where a portion of the land to actual possession, but blended the two is in actual adverse possession, the party and gave them the same effect; that is, so holding has constructive possession of all treated both as constituting, in effective opthe premises outside of his inclosure to the eration, a single possession. In so treating limits of his claim or assurance of title; | them, the opinions referred to not only held and such constructive possession is superior the court in line with its former adjudicato that which results merely from the tions above referred to with approval, but ownership of the legal title, and is sufficient preserved its harmony with the overwhelmto put in operation the statutes of limita- ing weight of authority in this country tion to the entire tract."

upon the special phase of the question hereIn the second case it is said: "The in considered, as shown by the excerpts Northcuts had actual possession of a small which we have made from the text-books house upon the land occupied by Mrs. quoted above, and as exhibited by the vast Mansfield as their tenant, claiming to the number of cases cited in the notes on the extent of the boundaries called for in their | pages referred to. title papers. The remainder of the tract The substance of the whole matter, as was uninclosed. A claimant of the land applied to the present controversy, is that, under a hostile title to that of defendants the defendants in error being in actual posin error built a cabin upon a different part session of a part of the tract on which the of the premises, and induced Mrs. Mansfield timber grew, by their tenant living in a to move into it and attorn to him, and this house built upon the tract, holding under action [forcible entry and detainer) was color of title, and claiming the land as their brought to dispossess her. Defendants in own at the time the timber was felled and error, under these facts, had possession of the logs taken away, their possession exthe entire tract,-actual possession of the tended to the limits or boundaries conhouse occupied by their tenant, and contained in their title papers, which covered structive possession of the remainder. Con the space where the trees grew. This posstructive possession of this nature, connect session was the "effective possession" or ed as it is with actual possession of a part “virtual possession" described above, and of the premises is of a higher character was an “adverse possession," in the sense in than that which follows the legal title. It which that term is used in the law. Being will perfect a defective title, under the stat- thus in adverse possession of the land, they ute of limitations, and raise a presumption were likewise in adverse possession of the of grant, when held for sufficient periods timber which grew upon it, and, when it of time.

We think that construct- was felled and the logs hauled away, these ive possession of this character is sufficient logs were taken from their possession; and, to enable a claimant so holding to maintain within the authorities cited, and under the this action.”

principles stated, they were entitled to purIt is perceived that the species of "con- sue the logs by the appropriate possessory structive possession" enforced in these two action (replevin); and, to sustain the accases in no wise differs from the "effective tion, they did not need to go further than possession” mentioned in Hebard v. Scott, prove their status as above outlined, and and the "virtual possession” mentioned in the taking, without deraigning title or goM'Colman v. Wilkes, 3 Strobh. L. 465, 5.1 ing into a controversy with the person takAm. Dec. 637, and that the attributes which ing the logs concerning the true title to pertain to an actual possession belong to it. the land. Any other view would place the It is further apparent that the learned court in the novel position of holding that justice who prepared the opinion in the one in adverse possession of land, claiming

quoted from carefully distin- under color of title, may recover the land guished the kind of constructive possession itself from a trespasser by a possessory ac—"effective possession" or "virtual posses- tion, but must bring ejectment for timber sion”—enforced in those cases from the gen- cut from it, or (the same thing, in suberal constructive possession which the law stance) must sustain his possessory action attaches to the title where there is no ac- for the timber (replevin) by the character



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of testimony required only in ejectment

to show that the title to the prop

erty replevied is not in the plaintiff, but in So, recurring to the special point previ- himself or a third person, and thereby deously mentioned, we conclude that the deed feat the action. The plaintiff cannot sucof the Cumberland Coal & Coke Company, ceed unless he prove either a general or speeven if admitted in evidence, could not pro- cial property in himself.

[Hence), tect Hizar Beaty's estate against recovery in property acquired by robbery does not vest the present action.

such title in the trespasser as will authorize It is insisted by the plaintiffs in error that him to maintain the action.” his exception to the two Gernt deeds above Under the plea of not guilty, in an action referred to should have been sustained. We of replevin, “the material inquiry is as to do not think so. The exceptions were, in the property of the plaintiff, which he must substance, that those two deeds did not de. be prepared to prove. If this issue is found scribe any land. This is a mistake. They against him, he cannot succeed.” 2 Greenl. refer to the grant by its number, and it de. Ev. 563. scribes the land. Id certum est quod cer- “The plaintiff cannot succeed, then, unless tum reddi potest.

he is prepared to prove either a general or It is insisted that the defendants in error special property in himself, and will be dedo not show a right to the possession of any feated if the proof shows the right to the interest in the logs sued for, and that there property and possession is in a stranger, can be no recovery in replevin in such a case.

It is enough for this case to say that To this it need only be replied that the the present defendant has a right to show whole possessory right is shown to be in that the plaintiffs have no title, or that the Bruno Gernt. It is immaterial to the plain- legal right to the property is outstanding in tiffs in error if he join others with him in

anyone else; and, if he succeeds in the suit, and share his recovery with them. doing so, the plaintiffs must be defeated.”

It is said that, after the date of his deeds McFerrin v. Perry, 1 Sneed, 316. above referred to, Bruno Gernt executed a In the case at bar the plaintiff is relieved deed to Sydney Beckwith to an undivided by the majority from showing property or 450-acres interest in the land covered by title in himself, and his right to recover is grant No. 3,329 and that it does not appear made to depend upon constructive possesbut that the logs in question, or some of sion, although actual possession would not them, were cut from said Beckwith’s land. suffice unless the right to that possession is This is an immaterial matter to the plain- shown by the proof, See also Collier v. tiffs in error since Beckwith joined in the Yearwood, 5 Baxt. 581. suit below.

To the same effect is Hart v. Vinsant, 6 It is said that part of the logs in question Heisk. 618. In that case it is said: “Situawere cut from the land of Marion Stephens, ted as the trees were out of which the rails and part from the land imed by the de

were made,—the land being uninclosed, and fendants in error, and that it is impossible therefore not in the actual possession of eito distinguish them. This is immaterial, ther party,—it became a legitimate and necalso, since it appears that Marion Stephens essary inquiry to ascertain upon whose land transferred his right in the logs, whatever they stand, not for the purpose of trying the it might be, to the defendants in error prior question of title to the land, but as a means to the bringing of the suit below.

of determining who had the right to the posThe foregoing sufficiently disposes of the session of the rails when made.” real matters in controversy, and we need

In Clement v. Wright, 40 Pa. 250, it is not refer to or consider the other errors as

said: In the absence of any actual adverse signed.

possession of wild timber land, the law casts It results that the judgment of the court the possession on the owner; and proof of below must be affirmed.

title was therefore admissible, not for the Wilkes, J., dissenting:

purpose of trying the title, but to prove posI do not concur with the majority opinion. session in the rightful owners, which posThere is no principle better established than session defendant had acquired by purchase. that in an action of replevin the plaintiff To the extent that it was legitimate and must show either a general or special prop- necessary to inquire into the ownership or erty or ownership in himself.

right of possession of the rails, it was inIn Parham v. Riley, 4 Coldw. 5, it is said : cumbent on both parties to adduce the best “The purpose of the action of replevin is to evidence of title. It was also erroneous to recover in specie the personal chattel which exclude the title papers of defendant. has been taken and detained from the own- The action of replevin is based upon the er's possession. Under the plea of ‘not trespass in the taking; and in such actions guilty. It is competent for the defendant of trespass the plaintiff must show an actual possession, or a valid title in himself to the timber thereon, such settlement does not conpremises in dispute. Snoddy v. Kreutch, 3 stitute him an adverse claimant, and the Head, 303; Large v. Dennis, 5 Sneed, 597. true owner may bring replevin for the logs

The title required in cases of replevin is and the timber so cut.” To the same effect the same as in actions of trover. Cobbey, see also, 24 Am. & Eng. Enc. Law, 2d ed. Replevin, $ 89. When a plaintiff is in ac- p. 486, § 8; Hungerford v. Redford, 29 tual possession, he need not deraign his | Wis. 345; McNarra v. Chicago & N. W. R. title, as against a naked trespasser. Large Co. 41 Wis. 69; Wadleigh v. Marathon v. Dennis, 5 Sneed, 597.

County Bank, 58 Wis. 546, 17 N. W. 314. But constructive possession can never be The majority opinion refers to Cobbey on determined to be in any other than the legal Replevin, 88 353, 374-376, 382; and § 353 owner of the premises. Therefore the plain- is copied, which explicitly and directly suptiff in this action, where brought for a cas- ports this dissent, by stating, in substance, ual trespass to wild and unoccupied lands, that, where there are adverse claimants to must show title to the premises. Polk v. land, replevin will not lie for timber cut by Henderson, 9 Yerg. 310; Douling v. Hick- one of them. Section 376 we have already mon, 4 Hayw. (Tenn.) 170; West v. Lanier, copied. The gist of that section is that, when 9 Humph. 771; Bailey v. Massey, 2 Swan, the land is unoccupied when the logs are 168.

taken, the plaintiff must show that he is the As we understand the opinion of the ma- real owner, and trace his title to the governjority, any person having constructive pos- ment. So in § 354 it is said: “Where the session, but not actual occupancy, of prem- land is wild, uninclosed, the plaintiff must ises, may bring an action of replevin for tim- show a good legal title, as constructive posber cut. If so, then, in case of an interlap session follows the legal title.” Johnson or any other conflict of title, in which both v. Elwood, 53 N. Y. 43ļ. To the same effect parties have possession of part and title pa is Hart v. Vinsant, 6 Heisk. 616. pers for the remainder, either party may In Hungerford v. Redford, 29 Wis. 345, it bring replevin against the adverse claimant, is said: “Action to recover the possession of without showing title and ownership, be- a quantity of pine logs, alleged to have been cause each has constructive possession of the cut by the defendants on a certain tract of same grade and dignity. In addition, it land belonging to the plaintiff, and by them is a solecism to speak of constructive pos- removed therefrom. The complaint is in session which is not based upon ownership the usual form. The answer is a general deand title, for, in order to show constructive nial, and an averment that the land upon possession, title and ownership must appear which the logs were cut and from which as its basis. The correct doctrine, as I un. they were removed belongs to the defendderstand it, is that a party in actual posses ants. The plaintiff recovered judgment in sion or occupancy of land, as when it is in the circuit court, from which the defendants closed, etc., may maintain replevin against have appealed. 1. It appears by the evia naked trespasser who does not claim title. dence that the land from which the logs were But where there are two parties claiming taken was unoccupied; and it was therefore title to land, and neither in occupancy, necessary that the plaintiff should prove neither may maintain replevin for timber that he was the owner thereof before he cut on the disputed premises, and certainly could recover the logs. The owner of the not without showing “ownership,” which in land is the owner of the logs, and entitled to the case of real estate is synonymous with the possession of the same. To prove his "title," and title cannot be tried in an ac- title to the land, the plaintiff gave in evition of replevin. As is said in Cobbey on dence a conveyance thereof executed by Eli Replevin, $ 376. 'In replevin for logs cut P. May and wife to Wm. B. Ogden, dated and removed by defendants from the land January 21, 1857; also conveyances of the to which plaintiff claims title, proof that same land executed by Ogden to Flagg, by the plaintiff was in actual possession and Flagg to Rumsey, and by Rumsey to the occupancy of the land at the time of such plaintiff. The latter of these conveyances cutting and removal is sufficient to enable is dated August 17, 1868. This is all of the him to maintain the action, without proof testimony relating to plaintiff's title to the of a paper title, unless the defendants prove land, and it is clearly insufficient. It fails an adverse title thereto of a higher churac- entirely to show that May or any other ter than a mere possessory title. But where grantor in either of the above-mentioned the land was unoccupied when the logs were conveyances had any title to the land, and taken, plaintiff must show that he is the hence fails to show that the plaintiff has real owner, and trace his title to the gov- | title thereto. A merely colorable title in ernment. Where a trespasser settled on the plaintiff is not alone sufficient to entitle timber land for the purpose of cutting the him to judgment in an action like this,

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