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conveyance itself, and entry under it, is sufficient evidence of the adverse character of the entry and possession; and if the deed is recorded, it is also evidence of the extent of the claim and of its notoriety; but, except in the case of gores and other vacant lands, it affords no evidence of possession, actual or constructive, upon which a title can be predicated by the lapse of the statutory period.1 The constructive pos

1 In Taylor . Public Hall Co., 35 Conn. 430, the court held that a deed, although it conveyed no title, nevertheless characterized the possession, and rendered it adverse against all the world from its date. An entry upon land under a deed, and possession by leasing parts of it, and occasionally cutting wood upon it during the period required by the statute, although for a period of a few years no acts of owner. ship were exercised, is a sufficient possession to constitute a title. Menkens v. Ovenhouse, 22 Mo. 70. Where two parties are in joint possession of land, mutually conceding each other's title to respective moieties, the statute of limitations cannot run in favor of the one having legal title to the whole. McCammon v. Pettit, 3 Sneed (Tenn.), 242. One who enters as tenant for life does not hold adversely to the remainder-man. Turman v. White, 14 B. Mon. (Ky.) 560. Where one is in possession, claiming an adverse title, with nothing but the naked possession to evidence his claim, his title is limited to that por tion over which he exercises palpable and continuous acts of ownership. Bell v. Longworth, 6 Ind. 273. It is against the policy of the statutes of fraud and limitations to allow a mere intruder, without color or claim of title, to acquire rights on easier terms than those who hold under adverse possession. Ball v. Cox, 7 Ind. 453. Possession, to be adverse, must be clearly shown by positive proof, and must be with such circumstances as are capable in their nature of notifying to mankind that the party is on the land, claiming it as his own, openly and exclusively. McClellan v. Kellogg, 17 Ill. 498. And a possession is not subordinate, but adverse, to the title of the true owner, wherever it is inconsistent with the idea of paramount title in another. Morrison v. Hays, 19 Ga. 294. Where a tenant in possession dies, adverse possession cannot commence to run against his title until the appointment of his administrator. Miller v. Surls, 19 Ga. 331. The owner of a junior survey, which inVOL. II. -14

terfered with an older and unoccupied one, took possession of his survey, erected improvements upon it, cleared and cultivated a part of it outside the lines of the interference, and used the balance, including the interference, as timber land adjoining cleared land is ordinarily used, taking therefrom firebote, fencebote, and timber for a saw-mill, for a period of twenty-one years. Held, that this was such possession of the interference that, under the statute of limitations, his title to it could not be disputed.. Beaupland v. McKeen, 28 Penn. St. 124. The acts of going yearly, for a few weeks at a time, to get rails and other timber from land, though only valuable for timber, do not amount to such an exercise of ownership as will ripen a defective title, or give an action of quare clausum fregit. Bartlett v. Simmons, 4 Jones (N. C.) L.. 295. Where A. owned a saw-mill near an unenclosed pine lot, and for five years cut sticks therefrom for his mill, made roads. for hauling them to it, and for several years more cut lightwood and firewood therefrom, it was held that these facts did not constitute such an open, notorious, and visible occupation of the property as to manifest an intention by A. to claim. the fee of the lot. Watts v. Griswold, 20 Ga. 732. Nor is an entry for survey. Dillon v. Mattox, 21 id. 113. To constitute an adverse possession, there need not be an exclusive claim to the entire title, nor one necessarily excluding the idea of title in another person; and where a man having sold a farm by full warranty deed, about five years afterwards executed a lease of the privilege of turning the course of a stream on the land, it was held that the assertion of right which he thereby made, being accompanied by actual enjoyment, was as effectual as an adverse claim in the hands of an assignee of the lessee, as an answer to a claim for possession, as though it embraced the entire estate in the land. Wicklow v. Lane, 37 Barb. (N. Y.) 244. In Maryland, before the present statute was adopted, actual enclosure for twenty

session which is extended over lands covered by his deed, as an incident to actual possession of a part of the land, cannot be extended to lands adjoining which are not embraced within the conveyance; 1 but if adjoining owners recognize a particular line as the true line between their lands, when in fact it is not, such acquiescence for the requisite period is binding upon them, if either had a continued, although only a constructive, possession of his lot, as such mutual recognition of the line operates as a sufficient color of title. In order to defeat the right of the public in the use of lands which have been dedicated for public use as a common or highway, the lands must not only be enclosed, but also must be used adversely to the public for the full statutory period.

years was essential to the possession of a tortfeasor to divest the title of the true owner. The act of 1852 provided that "actual enclosure shall not be necessary to prove possession, but acts of user and ownership other than enclosure may be given in evidence to prove possession." It was held that this last, without having a retroactive operation, could have a constitutional effect as a change of remedy, it being a declaration that evidence which might be sufficient to establish a title in equity should be available to the same purpose at law, and that this statute, being in derogation of the common law, would be strictly construed, and the possession claimed under it must be very fully proved. It must cover full twenty years, and the acts of user and ownership under it must be such as comport with the claim of one who claims against the world. Mere going upon the tract, being a wild and mountainous one, and cutting timber where any one cut who felt so disposed, or giving permission to cut, and offering to sell the land, going on it, walking over it, locking up a house and carrying away the key, it not appearing clearly that the house was on the lot claimed, are not enough. Thistle v. Frostburg Coal Co., 10 Md. 129.

tral R. R. Co., 28 Vt. 142. In such a case there must be proof of act of ownership done with an intent to assert title thereto; and when the inhabitants of a town, through their committee, survey a portion of land lying in common and undivided, run the lines, put up stakes as monuments, and a row of posts marked with the name of the town, and afterwards, through one of their selectmen, proceed to erect a fence about the same, which is removed by others before its completion, this is enough to give to them a possessory title to the same as against strangers. Simmons v. Nahant, 3 Allen (Mass.), 316. L., being the owner of lands adjoining a public highway regularly laid out and used by the public, extended his fence so as to include a portion of the ground within the surveyed line of the highway, which portion was not then used nor required for the public travel, and kept up the fence, without any objec tion, for upwards of twenty-one years. It was held that such partial encroachment upon the side of a surveyed and travelled highway was not necessarily adverse to the public, nor inconsistent with its easement, and therefore constituted no bar to its reclamation by the supervisor, when The required for the public travel. The mere undisturbed possession of lands for any length of time does not, of itself, create such bar as against a natural person. To have such effect, the possession must not only have been open and notorious, but it

entry of a person not having a perfected title, and collecting rent, will not operate as an interruption of the occupant's possession. Donahue v. O'Connor, 45 N. Y. Superior Ct. 278.

1 Shedd v. Powers, 28 Vt. 652; Grimes must also have been adverse during the v. Ragland, 28 Ga. 123. whole statutory period, and there must

2 Clark v. Tabor, 28 Vt. 222; Brown have been an intention on the part of the

v. Cockerell, 33 Ala. 38.

8 Covington v. McNickle, 18 B. Mon. (Ky.) 262. And the character of the user must be such as does not comport with the public easement.. Hatch v. Vt. Cen

person in possession to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited would raise a presumption of an extinguishment or a surrender of hi

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SEC. 268. How Adverse Possession may be proved. In determining the question of adverse possession, the jury may take into consideration the nature and situation of the land. And the placing of deeds on record, passing over the tract, employment of agents living in the neighborhood to look after it and prevent trespassers upon it, payment of taxes continuously under claim of title, and the like, may be considered by them; and it is not always necessary to prove actual occupation by the claimant; but the acts referred to would not be sufficient of themselves to establish title by reason of adverse possession, unless the land was unsusceptible of more definite and actual possession, or such acts were known to the party holding the legal title, and known to have been done under claim of adverse title.1 In a New York case, the defendants held under a deed executed less than twenty years before the commencement of an action to recover possession of the land. It was held that evidence to show that more than twenty years before the action was commenced they entered into possession under an executory contract for the purchase of the premises, which sale was afterwards consummated by deed, was admissible for the purpose of establishing an adverse possession. In a Vermont case, the defendant claimed the locus in quo as devisee under the will of A., and proved that it was decreed to him upon the settlement of A.'s estate, and he ever after claimed to own it, and from time to time exercised acts of ownership upon it. It appeared that A. in his lifetime conveyed the locus to B.; and the defendant offered to show that soon thereafter A. and B., by parol agreement, exchanged lands, A. taking the locus, and giving B. other lands, and that this exchange was ever after regarded by them as valid, and that each claimed the land for which he exchanged, and that, upon the settlement of their estates, the lands were treated the same way. It was held that the testimony was admissible as tending to give to the acts of the defendant, done under A.'s title or color of title, the

claim. Where the circumstances surrounding the possession of a portion of a public highway are entirely reconcilable with a continued recognition of the ultimate right of the public, the possession cannot well be said to be adverse in any just sense of that term. Lane v. Kennedy, 13 Ohio St. 42. The use, by the owner of the adjoining estate, of the land between his own and the travelled part of the way, by removing a wall and bank and building another, planting trees, cutting brushwood, digging the soil, and placing wood and wagons upon it, is not an adverse possession, such as to found an action of trespass quare clausum against an intruder. Smith v. Slocumb, 11 Gray (Mass.), 280.

1 Turner v. Hall, 60 Mo. 271; Clement v. Perry, 34 Iowa, 564; Washburn v. Cutter, 17 Minn. 361. Proof of a general en


closure of a large tract of land is not sufficient to constitute an actual, exclusive possession of a specific parcel within it, when it appears that much of the land within the enclosure is not claimed, and much of it is in the actual occupancy of parties claiming and holding adversely. Walsh v. Hill, 41 Cal. 571. Nor is the mere fact that a person built a fence around lands evidence of any possession or occupation. The motive and claim under which he acted should be shown. He may have been a trespasser, or have been hired by the owner, or have acted under a license, &c. The mere act of fencing is not evidence of an occupancy which can ripen into adverse possession. Russell v. Davis, 38 Conn. 562. 2 Howland . Newark Cemetery Association, 66 Barb. (N. Y.) 366.

3 Soule v. Barlow, 48 Vt. 132.

character of acts of possession, thus tending to strengthen the defendant's evidence that they were done under a claim of right. In West Virginia1 it is held that where an elder grantee is in the actual possession of part of his land outside of an interlock and the junior grantee is in the actual possession of a part of the interlock claiming the whole to the extent of his boundaries, the latter will not be limited in his possession by the possession of the former but will be regarded as in possession of all the land in the interlock. But where the deed does not contain definite boundaries, no title of adverse user can be acquired, where the statute makes the occupancy requisite to obtain title dependent upon an occupancy under "known and visible boundaries." 2 A person may acquire title by adverse user, by the occupancy of a tenant, or any person who occupies for him and in recognition of his title.3


SEC. 269. Continuity of Possession. The possession must be continuous during the entire statutory period, and uninterrupted, and the question as to whether or not it has been kept up will depend largely upon the situation and character of the land, and is a mixed question of law and fact. "If," says the court, "there be one element more distinctly material than another in conferring title, where all are so, it is the existence of a continuous adverse possession for the statutory period; " and if this continuity is broken, no title can be gained under the statute. So absolute is this rule, that even a military order which

1 Garrett v. Ramsey, 26 W. Va. 345. 2 Price v. Jackson, 91 N. C. 11. In North Carolina possession of part of the land described in a deed is superior to that of any person who has not superior title. Station v. Mullis, 92 N. C. 623.

3 Elliott v. Dycke, 78 Ala. 150.

Watts (Penn.), 141; Riddle v. City of Philadelphia, 11 Phila. Leg. Int. 84. But if the land is not such as to admit of residence or improvement, such use and occupation of it as from its nature it is susceptible of, with claim of ownership, will be an actual possession. West v. Lanier, 9 4 Groft v. Weakland, 34 Penn. St. Humph. (Tenn.) 762. But intention will 304. not be. "He must keep his flag flying." Stephens v. Leach, 19 Penn. St. 265. The effect given to claim under color of title is, perhaps, not the same in all the States. A case, new in instance at least, is the South Carolina one of Hill v. Saunders, 6 Rich. (S. C.) 62. T. and two others were tenants in common of a tract of land. P. entered under color of title, and held possession several years; but before the statutory period was complete, T. and his cotenants made partition of the land, and to T. was assigned a part over which P.'s color of title extended, but of which he had no actual possession after the partition, as before, until the statutory period was complete. It was decided that P. had not, as against T., acquired a title by possession to the part of the tract allotted to T. in the

• Unbroken continuity of possession is an essential element of an adverse holding, such as will ripen into a title under the statute, except when it is interrupted by mere intruders, who are ejected by a prompt resort to legal remedies. Beard v. Ryan, 78 Ala. 37. If the property is of a character to admit of permanent useful in provement, the possession should be kept up during the statutory period by actual residence, or by continued cultivation or enclosure, Johnson v. Irwin, 3 S. & R. (Penn.) 291; Royer and Another v. Benlow, 10 id. 303; Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230; either of which will do, Hoey v. Furman, 1 Penn. St. 296. Occasional occupancy with payment of taxes will not do. Sorber v. Willing, 10

directs all persons of a certain nationality to leave the State within a certain time will not save the benefits of a previous possession to one who falls within the terms of the order, during the period of such enforced absence, although the animus revertendi remains, as the courts can make no saving which the statute has omitted.1 The mere erection of a fence around a lot, which is not kept up, is not sufficient to preserve the continuity of possession required. Thus, where evidence was offered that a fence consisting of small posts with two rails fastened on them was placed round a lot of land by the plaintiff, but there was no evidence of his actual occupation or use of the land, and it appeared that the fence was suffered to go to decay in a year or two, and to become insufficient to keep out cattle, it was held that that was not sufficient to constitute prima facie evidence of title to land by adverse possession at common law, or under the provisions of the California statute of limitations, or under the Van Ness ordinance, as against a party who entered into possession and occupation of a part of the land after the fence had been suffered to become broken down and decayed. So where one entered on land, and cut logs, split boards, and otherwise prepared for building a house on the land, but returned to his home, which was in another county, and at the end of the succeeding year came back and finished the house, and put his family in it, no other person having had possession during said interval, it was held that the statute of limitations did not run in his favor during such absence. So where a person enters upon land, splits a few hundred rails, encloses and ploughs an acre and a half, then abandons the premises for three years, but at the end of that time returns and occupies the same continuously for four years, he cannot be considered as having maintained such a continuous adverse possession for seven years as is necessary to perfect a title under the statute of limitations. In another Georgia case,5 L. went into possession of land under color of title in 1847. That year he cleared four or five acres, fenced it, and sowed it in pease; the next year he planted it in corn, and built

partition. The root of the adverse possession, said the court, is the disseisin, originally confined to the actual pedis possessio. The adjunct, called color of title, extended it only by the constructive virtue that is allowed to the act and place of ouster, and cannot extend to land of which the grantee was not seised of title, and the constructive possession to the parcel severed from that in actual adverse possession, falls as the shadow would, with the substance, or as the incident of interest would, upon the extinguishment of the principal that bore it. 2 Smith's Lead. Cas. H. & W.'s notes, 563. Possession must be contin

uous and adverse, to give title under the
statute. Holcombe v. Anstell, 19 Ga. 604;
Harrison v. Cachelin, 23 Mo. 117; Sharp
v. Johnson, 22 Ark. 79; Trapnall v. Bur-
ton, 24 Ark. 371; Smith v. Chapin, 31
Conn. 530; Denham v. Holeman, 26 Ga.
182; Stump v. Henry, 6 Md. 201; Wheeler
v. Moody, 9 Tex. 372; Story v. Saunders,
8 Humph. (Tenn.) 663; Miller v. Platt,
5 Duer (N. Y.), 272.

1 Halliday v. Cromwell, 37 Tex. 437.
2 Borel v. Rollins, 30 Cal. 408.
3 Bryne v. Lowry, 19 Ga. 27.

4 Joiner v. Borders, 32 Ga. 239.
5 Virgin v. Land, 32 Ga. 572.

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