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adopted in the new States and the Territories, and the wisdom of this course is not doubtful. In some of the States different periods are adopted, according to the character of the estate occupied, or the nature of the occupancy. Thus, in New Jersey, sixty years' possession is ordinarily necessary; but thirty years' occupancy is sufficient when the possession commences or is founded on a proprietary right duly laid thereon, and recorded in the surveyor-general's office. In Arkansas, when the plaintiff does not claim title to the land, and neither he nor his intestate has been in possession for five years, his right of entry is barred. Where a person claims as, or under, a purchaser of lands at a judicial sale, his title cannot be impeached after five years, unless the person claiming the right of entry was a minor or of unsound mind when the sale was made, and in that case three years after the removal of the disability is given; and persons holding under a sheriff's or auditor's sale for the non-payment of taxes, or who have redeemed the same from the State auditor under the statute, or who hold the same under an auditor's deed, are protected, unless the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the lands in question within two years next before the action was commenced. In Indiana, a purchaser of lands under an execution, as well as all persons claiming under him, are protected after ten years from the sale; and purchasers, &c., from executors, administrators, guardians, or commissioners, who have sold under a judgment of a competent court directing the sale, are protected, unless action is brought within five years. In Illinois, a person actually residing on lands for seven consecutive years, having a connected title in law or equity, deducible of record from the State or the United States, or from any public officer or person authorized to sell the same, is protected against all claims of title upon which action is not brought within that period; and where a person is in the actual possession of lands under color of title, made in good faith, for seven consecutive years, and during such period pays all taxes assessed thereon, he is adjudged the legal owner of such lands to the extent and according to the purport of his paper title; and the same provision exists in favor of a person having color of title made in good faith to vacant and unoccupied lands, who during the period of seven years pays the taxes thereon, unless some person having a better title within that time pays the taxes thereon assessed for one or more years during such period.

These provisions, however, do not apply to lands owned by the State or the United States, nor where the person having an adverse title to the lands is under any of the disabilities specified in the statute, and commences an action for the recovery of the lands within three years after such disabilities are removed. In Kentucky, possession for seven years under a title of record from the Commonwealth vests the title in the occupier against all adverse claimants under or by virtue of interfering surveys or patents, except where the claimant at the time a

cause of action accrued was under some one of the disabilities named in the statute. In Kansas, an action for the recovery of land sold for taxes is barred in two years from the time when the deed is recorded, for lands sold on execution within five years from the recording of the deed, and for lands sold by executors, administrators, or guardians, within three years from the time when the deed is recorded; in all other cases within fifteen years from the time when the right of action or entry accrued. In North Carolina, the State is barred when a person has been in the adverse occupancy of lands belonging to it under visible lines or boundaries, for thirty years. Where a person has been in the possession of lands with visible lines and boundaries under colorable title for seven years, such possession is a perpetual bar against all persons except such as are under some one of the statutory disabilities, and railroad, turnpike, or canal companies. In all other cases twenty years' occupancy under known or visible boundaries is a bar. In South Carolina, the State is barred in forty years, where, during that period, it has not received any rent for, or profits from, the land. In Michigan, where the title to land is claimed by or through some deed made by an executor, administrator, guardian, sheriff, or other proper ministerial officer under the order, decree, or process of a competent court, five years' occupancy under such deed constitutes a bar against all persons claiming title thereto; and an occupancy of ten years under a deed made by some officer of the State or of the United States authorized to make deeds upon the sale of land for taxes assessed thereon and levied within the State, makes a complete bar; but in all other cases fifteen years' occupancy is necessary. In Nevada, a person in possession of mining claims, and working the same in the usual and customary manner, is protected by two years' possession. In Tennessee, a continuous adverse possession of lands held under a conveyance by husband and wife for twenty years, the conveyance being predicated upon a good consideration and free from fraud, operates as a perpetual bar to the husband and wife, and all persons claiming title by or through them.1 In Texas, a person holding peaceable and adverse possession of land, cultivating, using, or enjoying the same for five years, paying the taxes, and holding it under a deed duly registered, is protected, unless the deed was forged or executed under a power of attorney ; 2 but in all other cases ten years' possession is necessary.3 But where a person has had peaceable and uninterrupted possession of lands for three years under title or color of title, as defined by sec. 3192, such possession constitutes a complete bar. In Virginia, a distinction is made between lands lying on the east side of the Alleghany Mountains and those upon the west side. As to the former, fifteen years' possession is required; as to the latter, only ten years' possession is neces

1 Appendix, Tennessee.
2 Appendix, Texas.

8 Appendix, Texas.

4 Appendix, Texas,


sary. In some of the States, a distinction is made as to the quality of the estate acquired, where the occupant enters and holds under a color of title, and where he merely holds by naked possession. So, too, in several States a distinction is made between the character of occupancy required in the two cases; but it will be unnecessary to refer to that matter at length in this place, as this distinction will be developed in another part of this chapter.

SEC. 255. Statutory Provisions as to Adverse Possession. — In New York, for the purpose of constituting adverse possession under a claim. of title founded upon a written instrument, the premises are deemed to have been possessed and occupied in either of the following cases: 1st, where it has been usually cultivated and improved; 2d, where it has been protected by a substantial enclosure; and, 3d, where, although not enclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for the ordinary use of the occupant. And where a known farm or a single lot has been partly improved, the other portion, if used according to the usual course and custom of the adjoining country, is treated as within the possession of such occupant. Under this statute it is held that the occupancy need not be under a valid deed, but that if the deed covers the land, and there has been an occupancy under it for the requisite period, although the person executing the deed had no authority to do so, it is sufficient.1 Substantially the same provision exists in the statutes of Florida, South Carolina, California, Wisconsin, Nevada, Arizona, Dakota, Idaho," Montana,10 and Utah." In New York and in all the States named supra, it is also provided that where a person claims title not founded on a written instrument, judgment, or decree, such land shall be deemed to have been occupied and possessed, 1st, where it has been protected by a substantial fence; and, 2d, where it has been usually cultivated and improved.





Under these statutes, specifically defining what possession shall be regarded as adverse, the possession, in order to be operative, must be shown to be by some one of the modes stated in the statute, or it will be no protection, however long such possession may have been continued.12 Under these statutes, in order to acquire a title by possession on account of an enclosure, the party claiming must show that he has

1 Hilton v. Bender. 2 Hun (N. Y.), 1.

2 Appendix, Florida.

3 Appendix, South Carolina.

Appendix, California.

5 Appendix, Wisconsin, § 4212. But in this State, where the possession is under a written title, or upon a judgment, ten years' occupancy in this manner constitutes a bar; but in all other cases twenty years' occupancy is required.

Appendix, Nevada.

7 Appendix, Arizona.
8 Appendix, Dakota.

9 Appendix, Idaho.
10 Appendix, Montana.
11 Appendix, Utah.

12 East Hampton v. Kirk, 68 N. Y. 459; Cleaveland v. Crawford, 7 Hun (N. Y.), 616.

maintained during the requisite period a substantial enclosure and an actual occupancy, definite, positive, and notorious; 1 and merely keeping up a fence already built by a neighbor does not constitute a sufficient enclosure, within the statute. Where a lot was enclosed on one side by a highway, on two sides by a fence, and on the other side by a distinct line of marked trees extending from corner stake to corner stake, it was held that the lot was not protected by a substantial enclosure, within the meaning of the code. If cultivation and improvement are relied upon to give title, both must be shown; and merely reaping, of itself, is not cultivation; nor does the mowing of grass or the cutting of brush alone amount to an improvement, within the meaning of the statute.* Where land is entered upon under a claim of, but without written, title, there must be a pedis possessio, or an enclosure. But this does not necessarily contemplate an artificial fence. If the possession is actual, visible, exclusive, and notorious, so far as the actual occupancy extends by actual cultivation and improvement for the ordinary purposes of agriculture for the requisite period, a title may be acquired, but cannot, as in the case of an actual fence or color of title, be extended by construction to embrace lands not so actually cultivated and improved.5 Occasionally taking wood and timber from a wood-lot, or using it for a pasture, does not amount to cultivation and improvement, within the meaning of the statute, so as to give title by possession, in the absence of an enclosure. In a New York case these questions were considered by the court, and as the facts and the rules applicable under these peculiar statutes are well given by BoCKES, J., in the opinion of the court, we give it entire. He said: "The parties were owners of adjoining lands, the plaintiff on the south and the defendant on the north of the dividing line. There had been a fence for many years on the north of the plaintiff's cultivated land, enclosing it on that side and separating it from the uncultivated wood and timber land, which fence the plaintiff insisted was at a considerable distance south of the true line, and was, as he claimed, erected and maintained for his own convenience. The defendant, on the other hand, claimed and insisted that this fence marked the southern boundary of his lot, and the action was brought against him for entering upon and cutting wood on the strip of land situated between what the plaintiff claimed to be the true line and the fence. Much evidence was given bearing on the issue, and it may be here observed that no question is raised on this appeal, in regard to the admission or rejection of evidence. The first point urged upon our consideration is, that

1 Hardenbergh v. Schoonmaker, 2 Johns. (N. Y.) 230; McFarlane v. Kerr, 10 Bosw. (N. Y.) 249.



4 Doolittle v. Tice, ante.

5 Beeker v. Van Valkenbergh, 29 Barb. (N. Y.) 319; Leed v. Halstead, 5 Cow. Doolittle v. Tice, 41 Barb. (N. Y.) (N. Y.) 216; Young v. Camp, 1 id. 605; Sharp v. Brandow, 15 Wend. (N. Y.) 597;

8 Pope v. Hanmer, 8 Hun (N. Y.), Gilliland v. Woodruff, 1 Cow. (N. Y.) 276.

6 Pope v. Hanmer, 8 Hun (N. Y.), 265.

the court erred in refusing to direct a verdict for the defendant on' the evidence. There was very manifestly no error in such ruling. Without recapitulating the evidence and its bearings, it is sufficient to say that a case was made for the jury on the proof. There was a question of fact certainly on the evidence as to the location of the true line, and also on the question of practical location, supposing that the fence did not mark the true line. These questions were properly given over to the jury, and, on this appeal, must be deemed settled by the verdict. The jury found, as they had a right to find on the evidence submitted, that the true line between the premises of the respective parties was north of the fence, and would include and give to the plaintiff the lands where the alleged trespasses were committed; and further, that there had never been any practical location of the line between the parties, by the owners on the north and south of it, which barred the plaintiff's right to insist on the true line as the northern boundary of his land. Thus, the verdict determines the rights of the parties, unless obtained or rendered under some erroneous instruction by the court to the jury. This brings us to the consideration of the only important question presented by this appeal. On submitting the case to the jury, the learned judge held and charged that there was no question of adverse possession in the case. He said: There is no claim depending upon adverse possession, for the reason that the property in dispute is wood-land, and was incapable of actual possession or use; consequently the principle of adverse possession as establishing title to land does not come into the controversy. This ruling must be considered in view of the provisions of sections 369, 370, 371, and 372 of the Code of Procedure. Sections 369 and 370 declare what shall constitute adverse possession under written instrument or judgment.' These sections need not be here considered, inasmuch as the defendant made no claim to any part of lot number four under either. His train of title did not purport to convey any part of lot number four. Sections 371 and 372 provide that when the adverse holding is under claim of title, not founded upon a written instrument, . . . the premises actually occupied, and no other, shall be deemed to have been held adversely; and section 372 declares what shall be deemed an actual occupation, to wit: (1) Where the land has been protected by a substantial enclosure; and (2) where it has been usually cultivated and improved. As above suggested, the facts proved did not bring the case within the purview of sections 369 and 370. The defendant showed no paper title or claim founded on a written instrument, to any part of lot four, on which the locus in quo was situated. If his title in fact embraced the locus in quo as part of lot three, there was no question of adverse possession whatever, for it was not disputed, indeed, was conceded, that he owned to the south line of lot three, wherever that might be in fact, or as established by practical location, and the location of the line to which it was conceded the defendant had title was left to the decision of the jury on the evidence.


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