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of his claim and the kind or quality of possession requisite to establish it, must not be lost sight of.





Under the rule as stated supra, an adverse entry upon land, and digging a canal and felling trees,1 or turning cattle upon unenclosed land to pasture, paying taxes upon it and surveying it, or surveying and marking the lines around it, and the occasional cutting of grass * or wood and timber for use and sale," a survey which is not accompanied by any other act of user or occupation, is not sufficient to establish an ouster, or prove that the party went upon the land to claim title; nor does an entry upon lands, cutting wood and splitting rails, or occasional entries at long intervals, at one time to cut timber and at another to make bricks, tend to establish a title to land by adverse Occupancy. Indeed, in Massachusetts it is held that there can be no adverse claim to wild or wood land by a naked entry, without an actual enclosure built by the person claiming title or those under whom he claims; and if the entry is under color of title, the claimant must either enclose the land, or in some way manifest his exclusive occupation, which must be of such a character as to disseise the owner, 10 and whether or not he has so occupied is a question of fact for the jury." But in that State it has been held that a title to flats may be made by an appropriate occupation, by entering upon and filling them up, or by building a wharf and using the flats adjoining for laying vessels, and that in such case the occupant will acquire an adverse title not only to the land covered by the wharf, but also to so much of the land under the water (as in this case eighty feet) as was used for the purpose of

1 McCarty v. Faucher, 12 Martin (La.), 300; Prevost v. Johnston, 9 id. 123.

2 Andrews v. Mulford, 1 Hayw. (N. C.) 311. In Sepulveda v. Sepulveda, 39 Cal. 13, such a use of land was held not such as would enable the owner to maintain an action, consequently could not be construed into a disseisin.

3 Paine v. Hutchins, 49 Vt. 314; Miller v. Long Island R. R. Co., 71 N. Y. 380.

Kennebeck Purchase v. Springer, 4 Mass. 416. See Miller v. Long Island R. R. Co., 71 N. Y. 380, where it was held that an occasional entry upon woodland was not sufficient to maintain an action for an injury to the freehold.

5 Slater v. Jefferson, 6 Cush. (Mass.) 129; Parker v. Parker, 1 Allen (Mass.),

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9 Morrison v. Chapin, 97 Mass. 72; Morris v. Callanan, 105 id. 129.

10 Bates v. Norcross, 14 Pick. (Mass.) 224; Coburn v. Hollis, 3 Met. (Mass.) 128.

11 Cummings v. Wyman, 10 Mass. 464; Parker v. Locks and Canals, 3 Met. (Mass.) 91. The exercise of a right, for however long a time, under circumstances which are not inconsistent with the exercise of the same right by others, will not establish a prescriptive right to an exclusive use thereof, although no other person did in fact exercise the privilege. State v. Cin


laying vessels. But as the use of navigable waters for the passage of vessels to and from a wharf is a usage of common right, the title was restricted to the portion of the flats used for laying the vessels, and did not embrace that portion of them lying beyond and between the outer limits of the eighty-feet strip and that portion of the shore where the title of the State terminated. The exercise of a common right, however long continued, cannot operate a disseisin. This rule was well illustrated in a Connecticut case, in which it appeared that N., in 1818, sunk an old scow filled with stones in a navigable river on a flat between two channels, and constructed a rude pier thereon, which he used for fishing, but which was overflowed at high water. By gradual accretion of sand an island was finally formed, which emerged from the flats about the year 1845. N. died during this year, having used the pier and the ground forming around it for fishing purposes, and for those purposes only. The pier was also kept in repair by him during this time, and he claimed the place as his own property. In 1845, D., a son of N., claimed the island as his heir, and used it in the same way till his death in 1864, when another son took it and occupied it in the same way until his death in 1866, at which time it was inventoried as a part of his estate. From the first construction of the pier down to this time the pier and the island were used by large numbers of people for fishing, without license from any one, and without payment. The claim of N. and his sons that the place was their own property did not appear to have been recognized by others, or to have been enforced or generally made known. It was held that neither N. nor his sons were in such exclusive and adverse possession as to acquire title against the State or any other owner. Their occupation was rightful as the exercise of a right common to all the public, and so was not adverse." The

cinnati Gas Light Co., 18 Ohio St. 262. Thus, the ordinary use of a street by a railroad company, for its track and trains, being a use as a way only, can never, by any lapse of time, and even though continuous and exclusive, ripen into a title to the fee of the strip of land used. For them to gain such title upon the principles of adverse possession, it must appear that they occupied the land under a claim of ownership of the soil, and adversely to the use of it by the public as a street. Indianapolis, &c. R. R. Co. v. Ross, 47 Ind. 25.

1 Wheeler v. Stone, 1 Cush. (Mass.) 313. See also Nichols v. Boston, 98 Mass. 39.

2 Wheeler v. Stone, ante. In Wilson v. McEwan, 7 Oreg. 87, it was held that a person who claimed several blocks of land, and occupied one adversely, could not claim title to the others simply because he had paid the taxes thereon and warned off trespassers.

8 Green v. Chelsea, 24 Pick. (Mass.) 71; Drake v. Curtis, 1 Cush. (Mass.) 395. Tracy v. Norwich, &c. R. R. Co., 39 Conn. 382.

See also East Hampton v. Kirk, 68 N. Y. 459, where the same rule was adopted where the only possessory acts were such as existed as a common right. Tappan v. Burnham, 8 Allen (Mass.), 65;

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fact that a person passes over flats with vessels and anchors them there, or uses the flats for the purposes of access and egress from a wharf,1 or sails over them with boats or vessels for a long period, for the purposes of navigation, does not amount to possessory acts sufficient to give title under the statute; nor does the cutting of grass every year upon flats partly covered with water, or the entry upon an open beach for a long period of time and gathering and removing the seaweed, because these acts are consistent with the rights of the rest of the public, and afford no evidence of an adverse claim. An entry upon land and erecting a building or buildings thereon operates as a disseisin to the extent of the actual occupancy, but title to adjacent lands occasionally used in connection with the buildings cannot be acquired by such use; but if the use of adjoining land is of such a character that it can be said to be continuous, as where a house was extended over a part of the land, and the rest was cultivated as a garden under a claim of title, the use operates as a disseisin of the whole. Of course an entry upon land, and improving or cultivating it, continued for the requisite statu-tory period, even though the person entering has no color of title, will give title to all the land actually cultivated or improved, but nomore. So, using land for mining purposes or quarrying stone, and cutting wood for a lime-kiln, clearing and cultivating new fields, turning out old ones and cutting wood promiscuously, has been held sufficient. 10

SEC. 259. Entry and Possession with Color of Title. -We have seen by the last section that a person entering upon lands adversely, without any deed or color of title, is restricted to the land actually occupied by him, and takes nothing beyond the limits of his actual occupancy, and also that he is required to occupy the land for the purposes of improvement or cultivation; but where a person goes into possession under color of title, duly recorded, in which the boundaries of the lot are defined, this operates as constructive notice to all the world, of his claim, and also of its extent, so that not only does a sufficient occupancy of a part of the lot carry with it, by construction,

also, Drake v. Curtis, 1 Cush. (Mass.)


1 Wheeler v. Stone, ante.

2 Drake v. Curtis, ante.


Hastings v. Merriam, 117 Mass.

7 Miller v. Shaw, 7 S. & R. (Penn.) 129; M'Caffrey v. Fisher, 4 W. & S.

3 Com. v. Roxbury, 9 Gray (Mass.), (Penn.) 181; Hall v. Powell, 4 S. & R.


Tappan v. Burnham, ante; East Hampton v. Kirk, ante.

5 Poignard v. Smith, 8 Pick. (Mass.) 272.

VOL. II.-11

(Penn.) 456.

8 Bell v. Denson, 56 Ala. 444. Moore v. Thompson, 69 N. C. 120. 10 Wallace v. Maxwell, 10 Ired. (N. C.) 110.

the possession of the entire premises described by his conveyance, where the boundaries are well defined,1 but also dispenses with the rule as to pedis possessio, and only requires from him such an occupancy as the nature and character of the premises admits of. The rule is well stated in an Illinois case, that a person who enters into

1 Stevens v. Hollister, 18 Vt. 294; Bank v. Smyers, 2 Strobh. (S. C.) 23; Lenoir v. South, 10 Ired. (N. C.)237; Johnson v. McMillan, 1 Strobh. (S. C.) 143; Jackson v. Oltz, 8 Wend. (N. Y.) 540; Simpson v. Downing, 23 id. 316; Golson v. Hook, 4 Strobh. (S. C.) 23; Janio v. Patterson, 62 Ga. 527; Coleman v. Billings, 89 Ill. 183; Waggoner v. Hastings, 8 Penn. St. 300; Ament v. Wolf, 1 Grant's Cas. (Penn.) 518; Jackson v. Porter, 1 Paine (U. S. C. C.), 457; Ware v. Johnson, 55 Mo. 300; Chapman v. Templeton, 53 id. 463; Wellborn v. Anderson, 37 Miss. 155; Bynum v. Thompson, 3 Ired. (N. C.) 578; Kyle v. Tubbs, 23 Cal. 431; Webb v. Sturtevant, 2 Ill. 181; Shackleford v. Smith, 5 Dana (Ky.), 232; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677; Prevost v. Johnson, 9 Mart. (La.) 123; Jackson v. Smith, 13 Johns. (N. Y.) 406; Poignard v. Smith, 8 Pick. (Mass.) 272; Waldron v. Tuttle, 4 N. H. 371; Sparhawk v. Bullard, 1 Met. (Mass.) 95; Higbee v. Rice, 5 Mass. 344; Pearsall v. Thorp, 1 D. Chip. (Vt.) 92; Reid v. Eibert, 1 N. & McCord (S. C.), 374, note; King v. Smith, 1 Rice (S. C.), 14; McEvoy v. Lloyd, 31 Wis. 143; Ralph v. Bagley, 11 Vt. 521; Thompson v. Cragg, 24 Tex. 582; McRae v. Williams, 7 Jones (N. C.) L. 430; Craig ". Goodman, 22 N. Y. 170; Cline v. Catron, 22 Gratt. (Va.) 378; Hawkins v. Robinson, 3 Watts (Penn.), 205; Bowie v. Drake, 3 Duer, (V. Y.), 35; Tinlay v. Cook, 54 Barb. (N. Y.) 9; Downing v. Miller, 33 id. 383; Hasbrouck v. Vermilyea, 6 Cow. (N. Y.) 678; Munro v. Merchant, 28 N. Y. 9; Hubbard v. Austin, 11 Vt. 129; McCall v. Neely, 3 Watts (Penn.), 70; Hollingshead v. Naumon, 45 Penn. St. 140; Alden v. Grove, 18 id. 377; Fitch v. Mann, 8 id. 503; Ege v. Medlar, 82 id. 86; Sholly v. Stahl, 2 W. N. C. (Penn.) 418; Nearhoff v. Addleman, 31 Penn. St. 279; McCall v. Cooper, 4 W. & S. (Penn.) 151; Heiser

v. Riehle, 7 Watts (Penn.), 35; Saxton v. Hunt, 20 N. J. L. 487; Bowman v. Bartlett, 3 A. K. Mar. (Ky.) 99; Cheney v. Ringold, 3 H. & J. (Md.) 87; Stanley v. Turner, 1 Murph. (N. C.) 14; Crowell v. Peebe, 10 Vt. 33; Chiles v. Conley, 9 Dana (Ky.), 385; Alston v. Collins, 2 Speers (S. C.), 460.

2 Royer v. Benlow, 10 S. & R. (Penn.) 303. In Robinson v. Swett, 3 Me. 315, what seems to be the sensible and true rule is thus stated: "The lands in dispute being wild and uncultivated, the jury are not to expect the same evidence of occupancy which a cultivated farm would present to them; but that facts and conduct on the part of a person exercising acts of ownership and claiming adversely title and possession, would amount in law to possession of the land, and disseisin, if known and acquiesced in by him who has the right; when, if unknown and not acquiesced in by such party, they would not amount to such possession and disseisin, but only to successive trespasses." Whenever an instrument by apt words of transfer from grantor to grantee, whether the grantor acts under the authority of judicial proceedings or otherwise, in form passes what purports to be the title, it gives to the grantee color of title, even should the instrument be considered as invalid. Possession under it for a period prescribed by statute bars the right of the true owner as effectively as possession under the most perfect title. It is an absolute defence to the action of ejectment. FIELD, J., in Hall v. Law, 102 U. S. 461.

8 Coleman v. Billings, 89 Ill. 183. In Fisher v. Bennehoff, 121 Ill. 426, 11 West Rep. 84, 3 Ill. 243, this doctrine was af firmed, SHOPE, J., saying, "When a person enters upon a tract of land without color of title, or an instrument defining its boundaries, his possession will not extend beyond what he has enclosed or actu

possession of land under a conveyance, although from a person having no title, is presumed to enter according to the description in the deed; and his occupancy of a part, claiming the whole, is construed as a possession of the entire tract.1 But in order to entitle a party to the ben

ally occupies; but when a person has a deed for a tract of land, actual possession of a part will constitute constructive possession of the whole, not in the adverse possession of another. A person need not

have land enclosed before he can be said to be in actual possession. When he has color of title, possession may be shown by the constant and uninterrupted use through a series of years, and of woodland, by taking there from wood for fuel, fences, and other purposes, or it may be shown by actual occupancy of a part of the tract for which he has a deed under which possession is held. In such cases the deed may be regarded as enlarging the possession to all the lands which it includes. Austin v. Rust, 73 Ill. 491; Scott v. Delany, 87 Ill. 146; Hubbard v. Kiddo, id. 578; Cairo, &c. R. R. Co., v. Woolsey, 85 Ill. 370. In the main case, Fisher v. Bennehoff, supra, it was held that testimony was admissible to show who was in possession during the period, or any portion thereof, when title by possession was being acquired.

1 A deed without a seal which purports to convey a title is sufficient as color of title. Kruse v. Wilson, 79 Ill. 233; Hamilton v. Bagges, 63 Mo. 233. So is a void deed. Mason v. Ayres, 73 Ill. 121. Executor's deeds, valid or not, are sufficient as color of title, King v. Merritt (Mich.), 11 West Rep. 291. A deed by the husband of a life tenant, after her decease may, under some circumstances, be good as a color of title. Forest v. Jackson, 56 N. H. 357. So a bond for a deed. Spitter v. Scofield, 43 Iowa, 571. So a deed obtained from a person who has no title may be good as color of title. Russell v. Modell, 73 Ill. 136; McCarny v. Higdon, 50 Ga. 629; Nowlin v. Reynolds, 25 Gratt. (Va.) 137; Payne v. Blackshear, 52 Ga. 637; Fagan v. Rosier, 68 Ill. 84. It was held in some early cases in New York, that possession taken under a grant from a foreign government does not constitute a sufficient

color of title. Jackson v. Ingraham, 4 Johns. (N. Y.) 163. See also Jackson v. Waters, 12 id. 365. But in view of the doctrine now generally adopted, that every possession under pretence or claim of right is protected, without regard to the question as to whether the title was from a valid source, it is not believed that the distinction made in these early cases would be recognized. Barney v. Sutton, 2 Watts (Penn.), 37; La Frombois r. Jackson, ante. See, as to the effect of what may be termed Indian deeds, that is deeds from the aborigines, Jackson v. Porter, 1 Paine (U. S. C. C.), 457; Johnson v. McIntosh, 8 Wheat. (U. S.) 571; Thompson v. Gotham, 9 Ohio, 170; Jackson v. Hudson, 3 Johns. (N. Y.) 384; Cooke v. Dodson, 1 Tenn. 169. Continued, open, and exclusive possession for the statutory period, under claim and color of title, is sufficient to give a good title thereto, without regard to the regularity and validity of the colorable title, or to the defects or insufficiency of the instruments confirming it. Grant v. Fowler, 39 N. H. 101; Farrar v. Fessenden, id. 268; Elliott v. Pearce, 20 Ark. 508; Coper v. Brooks, id. 542; St. Louis v. Gorman, 29 Mo. 593. And an entry upon and continued occupation of a portion of a lot, under a deed describing the whole by metes and bounds, gives possession of all the lands embraced in the title under which the entry is made and the occupation continued. And it is not necessary that it should commence or be continued under valid and effectual deeds, as in all cases where such possession is relied upon the idea of a rightful title is excluded, the fact of possession, and quo animo with which it was commenced and continued, are the only tests; and a variety of circumstances are evidence of the quo animo, &c. Thus, proof of the existence and transfer of mortgages and mortgage debts may properly be received to explain occupancy of the mortgaged premises by the mortgagees or their

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