#### Hess, Appellant, *v.*Sutton.

*Trespass*— Pleading—Possession *of land*— Evidence—Boundaries— *Nonsuit.*

“Not guilty” is the only plea allowed by the act in an action of trespass and by it the plaintiff is put on proof of his possession, actual or constructive, as well as of the injury described in the declaration. Where the land is unimproved, possession will be presumed to follow the title. If the land is improved, that fact shows it is in the actual possession of someone, and in such case the plaintiff cannot rest on his title but must show his possession.

Where in an action of trespass for cutting timber it appears that plaintiff’s deed described his land as “bounded on the north by unseated mountain land,” and that there were no marks on the ground nor corners fixed, and it also appears that the plaintiff did not know where his north line was, a nonsuit’ is properly entered.

Argued Feb. 26, 1907.

Appeal, No. 28, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., May T., 1905, No. 161, refusing to take off nonsuit in case of Hiram L. Hess v. Leo A. Sutton and William H. Freeman.

Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.

Affirmed.

Trespass to recover damages for cutting timber. Before Ferris, J.

The facts are stated in the opinion of the Superior Court.

*Error assigned*was refusal to take off nonsuit.

*A.*Ricketts, with him *Alex.*Ricketts, for appellant.

— The defendants admit in their plea that they entered the close of the plaintiff and committed the acts complained of, but claim they are not guilty of trespass because they have the right of possession of said close, and declare they are ready to verify that *531claim. And the burden of proof of this is upon the defendants: Olewine v. Messmore, 128 Pa. 470.

April 15, 1907:

The land where the trespass was committed being unimproved, this title of itself would. give him the constructive possession, if there were nothing else in his case: Caldwell v. Walters, 22 Pa. 378 ; Craft v. Yeaney, 66 Pa. 210; Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127; Tustin v. Sammons, 23 Pa. Superior Ct. 175; Wilkinson v. Connell, 158 Pa. 126.

*R. Laura*Gannon, for appellees,

cited: Wilkinson v. Connell, 158 Pa. 126; Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127; Whitney v. Backus, 149 Pa. 29.

Opinion bv

Henderson, J.,

The plaintiff’s action whs trespass for cutting timber. He claimed title under a deed containing the following description : “ Beginning at the northwest corner in Columbia county line, bounded on the north by unseated mountain land, on the east by land of Charles Wickham, thence on south and east by lands of Casper Bailey, thence again on south by lands of Casper Bailey, thence on west and south by land of William Seward, and west by line of Columbia county. Containing 116 acres of land, be the same more or less. Being part of larger tract of land surveyed in the warrantee name of Robert Gray. That is 96 acres thereof.” The preceding deeds offered in evidence contained a description of the land substantially the same. The important question in the case was as to the location of the north line of the plaintiff’s land. It was proved and not controverted that the land was on a rough mountain side, uninclosed, and unimproved. The plaintiff’s right to recover depended on his ability to show a line to which his title ran or to which he was holding by occupancy. We do not find in the record any evidence showing the location of the plaintiff’s north line. The description “ north by unseated mountain land” could hardly be more indefinite. No marks on the ground were established; no surveyor was called to prove where the lines were and no cornel's were fixed. The plaintiff, himself, did not undertake to state where his line was. In reply to the question, “ Did you know exactly *532where the north line of your land was?” he answered, “I never had it surveyed at that time. • I just bought as it was handed down from one claim to the other, and I bought from John Miner Taylor the right, title and interest.” On cross-examination, to the inquiry, “ You say you don’t know where your line is on the north? ” he replied, “ Only as it runs to unseated land.” He not only did not know where his own line was, but was also ignorant of the location of Wickham’s north line, his northeast corner. Under the authority of Whitney v. Backus, 149 Pa. 29, the plaintiff was put upon proof both of his possession and of the trespass complained of. Notwithstanding the earnest argument of the learned counsel for the appellant we do not feel at liberty to disregard that case. It is entirely consistent with the Act of May 25,1887, P. L. 271, establishing the plea in actions of trespass. “Not guilty” is the only plea allowed by that- act in an action of trespass and by it the plaintiff is put on proof of his possession, actual or constructive, as well as of the injury described in the declaration. Where the land is unimproved, possession will be presumed to follow the title. 'If the land is improved, that fact shows it is in the actual possession of someone, and in such case the plaintiff cannot rest, on his title but must show his possession: Wilkinson v. Connell, 158 Pa. 126. The appellant contends that both actual and constructive possession were established, as a part of the plaintiff’s land contained a dwelling house, a barn and other improvements. The actual occupancy of part of the premises does not aid, however, in determining the extent of the plaintiff’s holding. In the absence of some data from which the jury could ascertain how far north the plaintiff’s land extended it would be impossible to declare whether the defendants had committed a trespass or not. We do-not find any evidence in the case from which it could be determined that the trees cut by the defendants were on the plaintiff’s land.

The judgment is affirmed.