Thus it is seen that the defendant had no title, nor did he make claim of title upon a written instrument, to any land south of the line wheresoever that line should be found to be, either in point of fact or by practical location. Consequently his case on the proof was not brought within the purview of sections 369 and 370. If he had any case for an application of the law of adverse possession, it was because, having title to all or part of lot three, possession had been extended in good faith over part of lot four on the mistaken supposition that the train of title in fact embraced the land and justified such possession. But a claim of adverse possession under such a state of facts is controlled by sections 371 and 372 of the Code of Procedure. It would be the case of a party claiming title not founded upon a written instrument; in which case the premises actually occupied, and no other, shall be deemed to have been held adversely.2 Now, for the purpose of considering the question under discussion, the locus in quo must be regarded as south of the line, or not within the description contained in the defendant's line of title. Then, was the possession by the defendant and by his predecessors, of the locus in quo, an actual possession within the requirements of the law? This is to be determined by section 372, which provides that, "for the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: (1) Where it has been protected by a substantial enclosure; (2) where it has been usually cultivated and improved." It cannot be maintained that the locus in quo in this case was protected by a substantial enclosure. The premises claimed by the defendant were not so enclosed. Accept the statement of the defendant's counsel, as given in his points, that it was "enclosed on two sides by fences, a highway on another, and a distinct line of marked trees from corner stake to stake on the other," and the lot could not be deemed protected by a substantial enclosure. Corner stakes do not, nor does a line of marked trees, constitute a substantial enclosure. Then, was the defendant's possession and that of his predecessors such as was required by subdivision 2 of section 372 with a view to the establishment of title by adverse possession? Had the locus in quo, or the defendant's lot, of which it was a part as claimed, been usually cultivated or improved? The lot was a wood-lot, and the utmost that was proved as to possession even (to say nothing as to cultivation and improvement) was an occasional pasturing upon it, and now and then getting wood and timber for shingles and staves, and this only to a very inconsiderable and limited extent. To adopt the language of the learned judge in the case last cited, there is no evidence that the defendant adopted any of the means usually em

1 Hallas v. Bell, 58 Barb. (N. Y.) 247.

2 Code, § 371.

182.

8 Code, § 372.

Doolittle v. Tice, 41 Barb. (N. Y.)

ployed to improve the land. He never plowed, sowed, or tilled it, and it was then added, that this statute had in view the ordinary cultivation and improvement of lands, in the manner in which they are usually occupied, used, and enjoyed by farmers for agricultural purposes, such as plowing, sowing, manuring, and the like. In this case there can be no pretence that the defendant had thus cultivated or improved the lot.1 In the last case cited the rule was laid down, that to make out an adverse possession of lands so as to vest the title, where there is no deed or other written instrument, there must be a real substantial enclosure - an actual occupancy-a pedis possessio, definite, positive, and notorious, or they must have been usually cultivated or improved. As regards an actual pos-session a pedis possessio with a view to establish title by adverse holding, in a case like the one in hand, Jackson v. Woodruff is in point. These cases declare the rule to be that where a grantee, in taking possession under his deed, goes unintentionally and by mistakebeyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing them to be his, such occupation will be deemed adverse within the meaning of the statute of limitations, but only to the extent of his actual Occupancy by cultivation and improvement. So where a party rests upon his possession of land, outside the description in his deed, the possession, to be effectual as an adverse possession, must be an actual Occupation by improvement and cultivation. If the above conclusions. be sound, and they seem to stand on authority, the learned judge was right in his instructions to the jury, that the question of adverse possession was not in the case. There was no evidence submitted on which the defendant could predicate a title to the locus in quo, by adverse possession. So, also, these conclusions make the case one where the possession must in law be deemed to accompany the legal title, hence trespass might be maintained by the party holding such title."

SEC. 256. What constitutes a Disseisin under these Statutes.Except where the statute defines the species of possession which shall

be

regarded as adverse, so as to bar a right of entry, the question is left for settlement by the courts, in view of the language of the statute under which the question arises. In Maine, the language of the statute is, "No person shall commence any real or mixed action for the recovery of lands, or make an entry thereon, unless within twenty years after the right to do so first accrued, or within twenty years after he, or those under whom he claims, were seised or possessed of the premises;" and this is practically the provision in Vermont, New Hampshire, Connecticut, Massachusetts, Arkansas, Delaware, Illinois, Missis

8

twenty years," which is practically the same, as under this statute the right of action does not accrue until there has been a disseisin. In Kentucky, the provision is, "An action for the recovery of real prop

4

8

sippi,' Minnesota, North Carolina, Ohio, Oregon, Michigan, Nebraska, Tennessee, Virginia, West Virginia, New Mexico, and Wyoming. The language of the statute in all of these States is not identical with that of the Maine statute, nor is the period of limitation; but the practical effect is the same, and in none of them is there any provision as to what shall be deemed an adverse possession sufficient to bar a suit or entry. From this summary of the statutes it will be observed that the statute will not commence to run until a cause of action has arisen in favor of the person having the rightful title; in other words, until he has been disseised by the person in possession, or those in privity with him in the possession. And a person who enters upon the land of another, with the intention of usurping the possession, and carries that intention into effect by retaining the exclusive possession of the premises, actually disseises the owner; and this is so whether the entry and possession are contrary to the will of the owner or not, because, as we shall see hereafter, it is immaterial whether the owner knows of the disseisin or not; 5 nor is it necessary that the entry should be wrongful, because, although a person enters lawfully, yet if, after entry, he calls the owner's title in question, and claims the land as his own, or usurps dominion over it, either by words or acts, he is a disseisor; and if suffered to remain in possession under such circumstances, without entry or action by the owner, for the requisite statutory period, he acquires a title thereto by possession. But where the possession commences by the permission of the owner, there can be no disseisin or adverse possession until there has been a disclaimer by the assertion of an adverse title, and notice thereof, either actual or constructive. There are two kinds of disseisin : one a disseisin in fact, and the other a disseisin by election. A disseisin in fact is one whereby the original owner is divested of his seisin, and of all right in relation thereto, except his right of entry and of property, or of action for its recovery. A disseisin by election is when an act is done upon or in relation to lands, which is equivocal,

erty can only be brought within fifteen years after the right to institute it first accrued."

1 In this State the language is not the same, but its effect is identical, and the statute in this respect is expressly applied to courts of equity as well as courts of law.

2 In this State the language is, "An action for the recovery of the title or possession of lands, tenements, or hereditaments can only be brought within twenty-one years after the cause of action accrues." Sec. 4977.

8 In this State the statute specifies when the right of action shall be treated as having accrued; but the provisions in this

6

8

respect do not vary essentially from those which exist where no such provisions are made.

Towle v. Ayer, 8 N. H. 57; Melvin v. Proprietors, &c., 5 Met. (Mass.) 15; Co. Litt. 279.

5 Brown v. King, 5 Met. (Mass.) 173; Poignard v. Smith, 6 Pick. (Mass.) 172. 6 Walker v. Wilson, 8 N. H. 217.

7 Hudson v. Putney, 14 W. Va. 461; Foulke v. Bond, 41 N. J. L. 527.

8 This species of disseisin is recognized in Atkyns v. Horde, 2 Cowp. 689, also in 2 Inst. 412. But it seems that, in order to enable the owner to elect to treat an act as a disseisin, the entry must be injuste et sine judicio.

3

and may be treated either as a trespass or a disseisin according to the intention with which it was done, in which case the law will not permit the wrong-doer to qualify his own wrong, and claim it to be a mere trespass, roless the owner elects to so regard it. It frequently occurs that the courts fail to observe the proper distinction between these two classes of disseisins; but for the purposes of the application of the statute, and ascertaining the period from which it begins to run, this distinction is important, and quite apparent, because there can be no disseisin in fact, except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which is tantamount thereto; 2 and the claim or color of title must exist at the commencement, and any other entry is a mere trespass; and the person who is put out of possession may maintain ejectment or trespass against the wrong-doer, at his election. Of course, where the statute defines the species of possession requisite to bar the claim of the true owner, for the purposes of this statute, such a possession only will amount to a disseisin. There is much loose dicta in the cases bearing upon this question where the statute does not define the species of possession required, and many misstatements of the true doctrine or rules that control in determining whether there has been a disseisin and a sufficient adverse possession to divest the true owner of his title to lands, and as to the character of the possession requisite to work this result. But, after all, the whole matter hinges upon the circumstance whether there has been a disseisin in fact, and an actual expulsion of the true owner for the full statutory period; and in all cases where there has been, the possession is adverse, and the true owner is barred, both as to his right of entry upon, and his remedy for the recovery of, the land; and this has been held to be the case under these statutes in Connecticut and Michigan, where the original entry is wrongful, although the person entering does not claim title in himself, or deny the title of the legal owner if he usurps dominion over the land at the time of entry, and uses and occupies it exclusively and continuously as his own for the requisite statutory period, as in such a case, as in instances where there is entry under a conveyance, the law presumes that the holding was adverse, where the possession is accompanied with acts which are the usual insignia of ownership. An adverse possession is aptly defined by INGERSOLL, J., to be "a possession not under the legal proprietor, but entered into without his consent, either directly or

1 Prescott v. Rivers, 4 Mas. (U. S.) 326; Blunden v. Baugh, Cro. Car. 302; Varrick v. Jackson, 2 Wend. (N. Y.) 166. 2 Varrick v. Jackson, ante.

Rivington, 2 Saund. 111; Clute v. Vooris, 31 Barb. (N. Y.) 511; Jackson v. Harder, 4 Johns. (N. Y.) 202.

5 INGERSOLL, J., in Bryan v. Atwater,

8 Co. Litt. 153 b; 4 Bouvier's Law 5 Day (Conn.), 181; French v. Pearce, Dic. 558.

8 Conn. 442.

6 Bryan v. Atwater, ante.

indirectly given. It is," he continues, "a possession by which he is disseised and ousted of the lands so possessed." In other words, any entry upon lands without the consent of the true owner, and continuous Occupancy thereof by the person entering, as his own, which excludes the possession, actual or constructive, of such owner, for the full statutory period, is held by the courts of the States named to be adverse, within the meaning of the statute, and divests the legal owner of all right to such lands, whether such entry was made under a claim of title or not. This doctrine is in strict accordance with the definition of a disseisin given by LITTLETON.2 "A disseisin," says he, "is where a man entereth into any lands or tenements where his entrance is not congeable, and ousteth him who has the freehold ;" and of COKE, who says: 3 "A disseisin is the putting a man out of possession, and ever implieth a wrong. But dispossession or ejectment is a putting out of possession, and may be by right or by wrong. Disseisin," he continues, "is a personal trespass, or tortious ouster of the seisin ;" and ASTON, J.,* gives full countenance to the definition of a disseisin by Littleton, and agrees with him and COKE that to operate a disseisin two elements must concur, to wit, an entry which is not made under the title of the true owner, and an actual ouster of the owner under such entry; and he says, "Every entry is not a disseisin, unless there be likewise an ouster of the freehold." Under this definition it would seem to follow statutory period. Stokes v. Berry, 2 Salk. 421; Hellings v. Bird, 11 East, 49; Walton v. Ogden, 1 Johns. (N. Y.) 156; Griswold v. Bond, 5 id. 230; Bound v. Sharp, 9 id. 162. In Michigan, in Campau v. Dubois, 39 Mich. 274, it was held that no claim of title is necessary to perfect an adverse holding.

1 In Kennebeck Purchase v. Dahore, 2 Me. 275, MELLEN, C. J., says: "The doctrine on this subject seems to be plain and well settled. A possession must be adverse to the true owner in order to constitute a disseisin. The possessor must claim to hold and use the land for his own use, and exclusive of others, . . . and it was never incumbent on the tenant to prove more than his continued possession and occupancy for thirty years next before the commencement of the action, using and improving the premises after the manner of the owner of the fee;" and he adds: "Such possession, unless explained, affords satisfactory evidence to the jury that such tenant claimed to hold the land as his own." In Kennebeck Purchase v. Springer, 4 Mass. 416, PARSONS, C. J., said: "To constitute an actual ouster of him who was seised, the disseisor must have the actual exclusive occupation of the land claiming to hold it against him who was seised, or he must actually turn him out of possession." In Patterson v. Reigle, 4 Penn. St. 201, it was held that one who enters upon the land of an unknown owner, with an intent to hold until the real owner appears, has an adverse possession which will ripen into a title by the lapse of the

In Hinkley v. Crouse, 125 N. Y. 730, the parties were adjoining owners; the boundary line between their lots was in dispute. The defendant took possession, claiming title, and built upon the disputed strip of land, although the plaintiff, at the time, claimed title and disputed the right of his neighbor to enter. The plaintiff made no further protest or objection to the occupancy for more than ten years. It was held that there was no practical establishment of the line, and that the plaintiff was not estopped from asserting title. A mere acquiescence by the owner of land in the possession for less than twenty years of another, under claim of title, does not deprive the owner of his land, nor estop him from asserting his title.