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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 title is permitted, "not for the purpose of trying the question of title to the land," but for the purpose of determining the question of possession. Id. 618, 619.

In Brown v. Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 660, it is said: "Replevin is not the proper form of action to try title to land ex directo, though incidentally title to such action may sometimes be called in question. In Pennsylvania this action has been allowed a great sweep, and to embrace every question of property. But it is property in goods, and not in lands. It is to try the title to personal property, and not real estate. Replevin will not lie for a tract of land. Title cannot be decided in an action merely personal and transitory, no matter whether replevin, trover, or assumpsit. Nor can these actions be maintained by one not in the actual, exclusive possession, whatever his title may be, against one who is in the possession, claiming right. Here the possession is not vacant. The owner of the title is in the constructive, actual possession.

Here it is necessary that we should pause for a moment, and note the meaning attached to the terms "actual possession" and "constructive possession" in the authorities. Of course, it would be idle to attempt a review of the cases within the limits of a judicial opinion, so great is their number. But they are collected in 1 Am. & Eng. Enc. Law, 2d ed. pp. 822-830; 13 Am. & Eng. Enc. Law, 2d ed. p. 745; 28 Am. & Eng. Enc. Law, 2d ed. pp. 238, 239; 1 Cyc. Law & Proc. pp. 983, 1125, 1126. An examination of these authorities, text and notes, will disclose the following: There is some diversity in the use of the terms above referred to, but a substantial agreement concerning the true test of adverse possession in cases such as we have before us, wherein it appears there is actual possession of a portion of tract of land by one claiming under color of title defining boundaries. In the first authority cited in the last paragraph it is said: "It is well established that possession which is necessary to ripen into title must be actual, and to begin such possession, there must be an entry which will amount to an ouster of the true owner. It must be actual, either of all or part of the land claimed, as the same may be held with color of title or without; because constructive possession follows the title, and there cannot be two possessions of the same land at the same time, and the owner, being in possession by virtue of his title, remains until he is disseised by another entering and holding for himself." 1 Am. & Eng. Enc. Law, 2d ed. p. 822. "Mere naked possession without color of title is adverse only to the extent of the actual possession or inclosure. But an entry into possession under a conveyance from a person having color of title is presumed to be made according to the description in the deed, and his occupancy is construed as possession of the entire lot, where there is no actual adverse possession of the parts not actually occupied by him." Id. p. 824. "A man cannot by mere physical means retain land in his exclusive grasp. Possession may be more manifest as to a part than as to the rest. Therefore it is an established rule of law that the actual possession of a part is the possession of the entire tract or boundary covered by the occupant's title or claim of title. What is the extent of his possession is to be determined by the limits of his title or color of title. An intruder without color of title

In Page v. Fowler, 28 Cal. 605, 610, it is said, quoting from Halleck v. Mixer, 16 Cal. 579: "The true rule is this: The plaintiff out of possession cannot sue for property severed from the freehold when the defendant is in possession of the premises from which the property was severed, holding them adversely, in good faith, under claim and color of title. In other words, the personal action cannot be made the means of litigating and determining the title to the real property as between conflicting claimants."

In Rees v. Higgins, 9 Kan. App. 832, 834, 61 Pac. 500, it is held that it is "not proper to make the replevin action the means of litigating and determining the title to the real property as between conflicting claimants."

The reason underlying all these cases is that the primary consideration in a replevin action is the right of possession, and that, as to things severed from the realty, the possession of the land at the time determines the right of possession to such things, such person being in the adverse possession of the land, and claiming under color of title; that the court will determine the matter upon the right of possession, and not upon the title to the land; and finally, that in such an action the court will not permit the title of the land to be determined.

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There is one exception to be noted. This is: Where neither party has actual possession of any portion of the land at the time the timber is cut, the right to the possession of such timber must be determined by the title to the land, since the law in that case would attach constructive possession of the

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, unless expressly required by statute, essential to constitute adverse possession, but such acts are very decisive in determining possession and claim of ownership." Id. p. 828. "Fences are a means by which possession of land may be taken and held. They are not, however, the only means. There may be an actual possession without fences or inclosures of any kind, if it appears from other facts and circumstances that the plaintiff was exercising exclusive dominion and control over the land." 13 Am. & Eng. Enc. Law, 2d ed. p. 749. "When one is in actual possession of a portion of a given tract of land he will be held, in law, to be in possession of the remainder, if he holds under a deed or other color of title and there is no antagonistic or adverse possession." 13 Am. & Eng. Enc. Law, 2d ed. p. 750. "Actual possession, or possession in fact, exists where the thing is in the immediate occupancy of the party, or his agent or tenant." 28 Am. & Eng. Enc. Law, 2d ed. p. 238. "Constructive possession, or possession in law, as it is sometimes called, is that possession which the law annexes to the legal title or ownership of property where there is a right to the immediate actual possession of such property, but no actual possession." Id. 239. In the notes to the page last cited we find the following: "Constructive possession is 'a possession in law, without possession in fact.' Hodges v. Eddy, 38 Vt. 327. Properly speaking, constructive possession is that posses-"the sion which the law annexes to the title. M'Colman v. Wilkes, 3 Strobh. L. 471, 51 Am. Dec. 637. Possession which, as an inference of law, arises presumptively from the legal title, is a mere constructive possession, and is founded on the existence of title in some form. Jeffrey v. Owen, 41 N. J. L. 260. . . . Constructive possession is that which exists in contemplation of law, without actual personal enjoyment or occupation. Newcome v. Crews, 98 Ky. 339, 32 S. W. 947; Jeffrey v. Owen, 41 N. J. L. 260; Brown v. Volkening, 64 N. Y. 80; Foust v. Territory, 8 Okla. 541, 58 Pac. 728. Constructive possession is such a possession as the law carries to the owner by virtue of his title only, there being no actual occupation of any part of the land by anybody. Mitchell v. Bridgers, 113 N. C. 63, 18 S. E. 91; Graham v. Houston, 15 N. C. (4 Dev. L.) 232. Constructive possession may exist without an actual pedis possessio, where there is a present right, and the possession is either vacant, or is consistent with the

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In 1 Cyc. Law & Proc. pp. 982, 983, it is said: "That an adverse claim to land may ripen into a perfect title by virtue of the statutes of limitations, it is primarily essential that the possession relied upon be actual." On page 1125 it is said: "The general rule is well settled that where a party enters, under color of title, into the actual occupancy of a part of the premises described in the instrument giving color, his possession is not considered as confined to that part of the premises in his actual occupancy, but he acquires possession of all the lands embraced in the instrument under which he claims." In a note on page 983 it is said: "Actual possession may consist either in an occupancy in fact of the whole tract claimed, or of an occupancy of part thereof in the name of the whole, where there is sufficient evidence of the bounds of the whole that is claimed as one entirety, and the circumstances are such that the law extends the possession of the part that is occupied to these bounds. This latter may be termed a 'virtual possession,' in order to distinguish it from the other kind of actual possession, which is called 'substantial' or pedis possessio. But whatever terms may be used to give precision to the subject, the attributes which pertain to an actual possession belong to it, whether it be substantial or virtual. M'Colman V. Wilkes, 3 Strobh. L. 465, 51 Am. Dec. 637.”

In our own case of Hebard v. Scott, 95 Tenn. 467, 32 S. W. 390, it was held that occupation of part of a tract of land, claiming the whole, under a paper title defining its boundaries, is effective possession of the whole tract under the statutes of limitation." To the same effect are Winters v. Hainer, 107 Tenn. 337, 64 S. W. 44; Turnage v. Kenton, 102 Tenn. 328, 52 S. W. 174; Hunter v. Bills, 3 Tenn. Cas. 97, 101; Elliott v. Cumberland Coal & Coke Co. 109 Tenn. 745, 71 S. W. 749. We have one or two cases in our Reports which, upon casual reading, would seem to indicate that there must be an inclosure of the whole tract claimed, even when the party claims under color of title; but, upon careful reading of these cases in connection with the cases cited in them (Pullen v. Hopkins, 1 Lea, 741; Hicks v. Tredericks, 9 Lea, 491), it is clear that what is meant is simply that there must be some sort of inclosure upon some part of the land, as a house, a fenced field, or other "improvement," as visible evidence of possession, where the land is capable of such use, and not that the whole 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 possesIn 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 considered, as shown by the excerpts which we have made from the text-books quoted above, and as exhibited by the vast number of cases cited in the notes on the pages referred to.

In the second case it is said: "The Northcuts had actual possession of a small house upon the land occupied by Mrs. Mansfield as their tenant, claiming to the extent of the boundaries called for in their title papers. The remainder of the tract was uninclosed. A claimant of the land under a hostile title to that of defendants in error built a cabin upon a different part of the premises, and induced Mrs. Mansfield to move into it and attorn to him, and this action [forcible entry and detainer] was brought to dispossess her. Defendants in error, under these facts, had possession of the entire tract,-actual possession of the house occupied by their tenant, and constructive possession of the remainder. Constructive possession of this nature, connected as it is with actual possession of a part of the premises is of a higher character than that which follows the legal title. It will perfect a defective title, under the statute of limitations, and raise a presumption of grant, when held for sufficient periods of time. . . We think that constructive possession of this character is sufficient to enable a claimant so holding to maintain this action."

It is perceived that the species of "constructive possession" enforced in these two cases in no wise differs from the "effective possession" mentioned in Hebard v. Scott, and the "virtual possession" mentioned in M'Colman v. Wilkes, 3 Strobh. L. 465, 51 Am. Dec. 637, and that the attributes which pertain to an actual possession belong to it. It is further apparent that the learned justice who prepared the opinion in the cases quoted from carefully distinguished the kind of constructive possession -"effective possession" or "virtual possession"-enforced in those cases from the general constructive possession which the law attaches to the title where there is no ac

The substance of the whole matter, as applied to the present controversy, is that, the defendants in error being in actual possession of a part of the tract on which the timber grew, by their tenant living in a house built upon the tract, holding under color of title, and claiming the land as their own at the time the timber was felled and the logs taken away, their possession extended to the limits or boundaries contained in their title papers, which covered the space where the trees grew. This possession was the "effective possession" or "virtual possession" described above, and was an "adverse possession," in the sense in which that term is used in the law. Being thus in adverse possession of the land, they were likewise in adverse possession of the timber which grew upon it, and, when it was felled and the logs hauled away, these logs were taken from their possession; and, within the authorities cited, and under the principles stated, they were entitled to pursue the logs by the appropriate possessory action (replevin); and, to sustain the action, they did not need to go further than prove their status as above outlined, and the taking, without deraigning title or going into a controversy with the person taking the logs concerning the true title to the land. Any other view would place the court in the novel position of holding that one in adverse possession of land, claiming under color of title, may recover the land itself from a trespasser by a possessory action, but must bring ejectment for timber cut from it, or (the same thing, in substance) must sustain his possessory action for the timber (replevin) by the character


of testimony required only in ejectment.


So, recurring to the special point previously mentioned, we conclude that the deed of the Cumberland Coal & Coke Company, even if admitted in evidence, could not protect Hizar Beaty's estate against recovery in the present action.

It is insisted by the plaintiffs in error that his exception to the two Gernt deeds above referred to should have been sustained. We do not think so. The exceptions were, in substance, that those two deeds did not describe any land. This is a mistake. They refer to the grant by its number, and it describes the land. Id certum est quod certum reddi potest.

to show that the title to the property replevied is not in the plaintiff, but in himself or a third person, and thereby defeat the action. The plaintiff cannot succeed unless he prove either a general or special property in himself. [Hence], property acquired by robbery does not vest such title in the trespasser as will authorize him to maintain the action."


Under the plea of not guilty, in an action of replevin, "the material inquiry is as to the property of the plaintiff, which he must be prepared to prove. If this issue is found against him, he cannot succeed." 2 Greenl. Ev. 563.

It is insisted that the defendants in error do not show a right to the possession of any interest in the logs sued for, and that there can be no recovery in replevin in such a case. To this it need only be replied that the whole possessory right is shown to be in Bruno Gernt. It is immaterial to the plaintiffs in error if he join others with him in the suit, and share his recovery with them.

It is said that, after the date of his deeds above referred to, Bruno Gernt executed a deed to Sydney Beckwith to an undivided 450-acres interest in the land covered by grant No. 3,329 and that it does not appear but that the logs in question, or some of them, were cut from said Beckwith's land. This is an immaterial matter to the plaintiffs in error since Beckwith joined in the suit below.

"The plaintiff cannot succeed, then, unless he is prepared to prove either a general or special property in himself, and will be defeated if the proof shows the right to the property and possession is in a stranger, It is enough for this case to say that the present defendant has a right to show that the plaintiffs have no title, or that the legal right to the property is outstanding in anyone else; and, if he succeeds in doing so, the plaintiffs must be defeated." McFerrin v. Perry, 1 Sneed, 316.


In the case at bar the plaintiff is relieved by the majority from showing property or title in himself, and his right to recover is made to depend upon constructive possession, although actual possession would not suffice unless the right to that possession is shown by the proof, See also Collier v. Yearwood, 5 Baxt. 581.

To the same effect is Hart v. Vinsant, 6 Heisk. 618. In that case it is said: "Situated as the trees were out of which the rails were made, the land being uninclosed, and therefore not in the actual possession of either party,-it became a legitimate and necessary inquiry to ascertain upon whose land they stand, not for the purpose of trying the question of title to the land, but as a means of determining who had the right to the possession of the rails when made."

It is said that part of the logs in question were cut from the land of Marion Stephens, and part from the land claimed by the defendants in error, and that it is impossible to distinguish them. This is immaterial, also, since it appears that Marion Stephens transferred his right in the logs, whatever it might be, to the defendants in error prior to the bringing of the suit below.

The foregoing sufficiently disposes of the real matters in controversy, and we need not refer to or consider the other errors assigned.

In Clement v. Wright, 40 Pa. 250, it is said: In the absence of any actual adverse 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.

Wilkes, J., dissenting:

I do not concur with the majority opinion. There is no principle better established than that in an action of replevin the plaintiff must show either a general or special property or ownership in himself.

title was therefore admissible, not for the purpose of trying the title, but to prove possession in the rightful owners, which possession defendant had acquired by purchase. To the extent that it was legitimate and necessary to inquire into the ownership or right of possession of the rails, it was in

In Parham v. Riley, 4 Coldw. 5, it is said:cumbent on both parties to adduce the best It was also erroneous to evidence of title. exclude the title papers of defendant.

"The purpose of the action of replevin is to recover in specie the personal chattel which has been taken and detained from the owner's possession. Under the plea of 'not guilty. It is competent for the defendant

The action of replevin is based upon the trespass in the taking; and in such actions 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. The majority opinion refers to Cobbey on Replevin, §§ 353, 374-376, 382; and § 353 is copied, which explicitly and directly supports this dissent, by stating, in substance, that, where there are adverse claimants to land, replevin will not lie for timber cut by one of them. Section 376 we have already copied. The gist of that section is that, when the land is unoccupied when the logs are taken, the plaintiff must show that he is the real owner, and trace his title to the government. So in § 354 it is said: "Where the land is wild, uninclosed, the plaintiff must show a good legal title, as constructive possession follows the legal title." Johnson v. Elwood, 53 N. Y. 431. To the same effect is Hart v. Vinsant, 6 Heisk. 616.

But constructive possession can never be determined to be in any other than the legal owner of the premises. Therefore the plaintiff in this action, where brought for a casual trespass to wild and unoccupied lands, must show title to the premises. Polk v. Henderson, 9 Yerg. 310; Douling v. Hickmon, 4 Hayw. (Tenn.) 170; West v. Lanier, 9 Humph. 771; Bailey v. Massey, 2 Swan,


As we understand the opinion of the majority, any person having constructive possession, but not actual occupancy, of premises, may bring an action of replevin for timber cut. If so, then, in case of an interlap or any other conflict of title, in which both parties have possession of part and title papers for the remainder, either party may bring replevin against the adverse claimant, without showing title and ownership, because each has constructive possession of the same grade and dignity. In addition, it is a solecism to speak of constructive possession which is not based upon ownership and title, for, in order to show constructive possession, title and ownership must appear as its basis. The correct doctrine, as I understand it, is that a party in actual posses sion or occupancy of land, as when it is inclosed, etc., may maintain replevin against a naked trespasser who does not claim title. But where there are two parties claiming title to land, and neither in occupancy, neither may maintain replevin for timber cut on the disputed premises, and certainly not without showing "ownership," which in the case of real estate is synonymous with "title," and title cannot be tried in an action of replevin. As is said in Cobbey on Replevin, § 376. 'In replevin for logs cut and removed by defendants from the land to which plaintiff claims title, proof that the plaintiff was in actual possession and occupancy of the land at the time of such cutting and removal is sufficient to enable him to maintain the action, without proof of a paper title, unless the defendants prove an adverse title thereto of a higher character than a mere possessory title. But where the land was unoccupied when the logs were taken, plaintiff must show that he is the real owner, and trace his title to the government. Where a trespasser settled on timber land for the purpose of cutting the

In Hungerford v. Redford, 29 Wis. 345, it is said: "Action to recover the possession of a quantity of pine logs, alleged to have been cut by the defendants on a certain tract of land belonging to the plaintiff, and by them removed therefrom. The complaint is in the usual form. The answer is a general denial, and an averment that the land upon which the logs were cut and from which they were removed belongs to the defendants. The plaintiff recovered judgment in the circuit court, from which the defendants have appealed. 1. It appears by the evidence that the land from which the logs were taken was unoccupied; and it was therefore necessary that the plaintiff should prove that he was the owner thereof before he could recover the logs. The owner of the land is the owner of the logs, and entitled to the possession of the same. To prove his title to the land, the plaintiff gave in evidence a conveyance thereof executed by Eli P. May and wife to Wm. B. Ogden, dated January 21, 1857; also conveyances of the same land executed by Ogden to Flagg, by Flagg to Rumsey, and by Rumsey to the plaintiff. The latter of these conveyances is dated August 17, 1868. This is all of the testimony relating to plaintiff's title to the land, and it is clearly insufficient. It fails entirely to show that May or any other grantor in either of the above-mentioned conveyances had any title to the land, and hence fails to show that the plaintiff has title thereto. A merely colorable title in the plaintiff is not alone sufficient to entitle him to judgment in an action like this,

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