Porter v. McGinnis

The grantee of part of a tract of land previously claimed according to the lines of surrounding surveys, who subsequently occupied his part adversely according to the linos of his grant by cultivation without residence; allowed to hold the woodland, as well as the fields, by the statute of limitations.

In Error. Error to the Court of Common Pleas of Clarion county. This was an action of trespass quare clausum fregit, brought by the defendant in error against the plaintiff in error, to recover damages for breaking and entering the close of the plaintiff) and cutting down, &c. certain timber trees, stated in the declaration. The defendant pleaded not guilty, and liberum tenementum. The facts of the case, as stated in the charge of the court below (McCallmont, President) to the jury, and which are material to elucidate the points made on the argument and decided here, are these : “James McGinnis commenced an improvement and settlement on a wild tract of land in 1807, which was supposed at the time, to be vacant, and defined his boundaries by what was called and known as the Franklin College Survey, No. 817, on the north, by the Jenkin, and the Ingersoll and Dallas surveys on the west and south, and by a line of a survey made by one Parker, and other warranted land, on the east. It appeared, that the controversy in this case grew out of a mistake made by the surveyor in locating the Franklin College warrant, No. 829-, or rather in making out the draft by reversing one of the courses. The work ,on the ground could not be discovered, as it did not correspond wfith the survey as returned to the land office; and not having been returned at the same time with the surveys on the other warrants, an opinion prevailed, that if located at all, it was at some other place; and that the land between the survey made on the warrant No. 817 and the Jenkin warrants, was vacant. This vacancy, as it was then called, James McGinnis continued to improve, and l^ept part of his family residing upon it until 1815. Part of the land was cleared, and amongst other improvements was a sugar camp, which they occu-' pied on the part now in dispute. James McGinnis, by virtue of his improvement and settlement, if the land belonged to the Commonwealth, had a right, on paying the purchase money, to a warrant for four hundred acres. But in 1815, he sold and conveyed one hundred and nineteen acres thereof to his son James J. McGinnis for $50, and applied for a warrant for the residue, about three hundred acres. James J. McGinnis entered upon the land so sold to him by his father, and held by the lines of his father’s warrant on the one side, and by the line of an adjoining survey on the other. He continued to occupy the land by these lines, either by himself or others under him, and to cultivate the cleared part thereof, till the period of the statute of limitations had elapsed. It also appeared, that in 1840 the location of the college tract, No. 829, was discovered, and was found to include the land now in controversy, and the principal part of the land in the survey of James McGinnis under his warrant.” At the close of the evidence, a number of points were submitted by the counsel of each party, upon which the court was requested to instruct the jury. The charge was excepted to by the defendant, and the answers of the court to the following points (the 6th and 7th) submitted by the counsel of the defendant, were assigned for error here. 6th point. That a non-resident disseisor, who has been in the peaceable adverse and continuous occupancy by cultivation of land, must be limited in his claim to the land occupied for twenty-one years; and that an entry by the owner upon a portion of the land not occupied by cultivation, does not amount to trespass. In answer to this point, the court said, that they could not discover « any material difference between a resident and non-resident occupier of a tract ofland for twenty-one years. If a person enters under colour of title, claims and cultivates part of the land, pays taxes for the whole tract, and continues his cultivation and payment of taxes without intermission for twenty-one years, why should he not have a title to the whole tract by the statute of limitations as certain as if he had resided during the said time on the land. We, therefore, think, that if a person enter into the actual possession by cultivation of a tract of land adverse to the owner, or the person who has the legal title clears and cultivates part of the land, occupies the residue, and claims to the extent of the boundary of the tract, and continually exercises acts of ownership over it; the right of the owner after twenty-one years would be barred, and his entry on a portion of the land not occupied by cultivation after the twenty-one years would be trespass. To acquire and preserve a title by actual settlement, a personal residence on the land is necessary, because the law requires it. But to acquire a title by the statute of limitations, residence is not necessary to make an adverse possession within the statute of limitations; the possession may be adverse by enclosing and cultivating land. Johnston v. Irwin, 3 Serg. & Rawle, 291.” 7th. That if, therefore, plaintiff had produced evidence of his cultivation of a portion of the land in dispute for twenty-one years by himself, or others for or under him; the circumstance of his residing on other land from 1815 or 1816 till the present time, makes him a nonresident, and would entitle him (if to any thing) to the land actually enclosed and cultivated, and nothing more. Answer. — “The residence or non-residence of the plaintiff would certainly make no difference, if other persons were cultivating it under or for him; whether there was residence or cultivation, or both, are facts for the jury. If there were cultivation and residence, the title could only be c.o-extensive with the land actually occupied and used, and the "boundaries defined by the plaintiff and those under whom he claims, by cultivation or otherwise.”