come to depend for its establishment to a greater or less extent on adverse possession. In spite of our elaborate books of record, possession remains the great source, muniment, and quieter of titles to land.

The extent of title and estate thus acquired, whether for years, for life, or in fee, is measured by the claim of title. "If the party claim only a limited estate and not a fee, the law will not, contrary to his intentions, enlarge it to a fee." Where a title depends upon possession, the estate evidenced by his possession depends upon the claim of title which he makes by his declarations or his acts.39

Certain qualifications of the title acquired by adverse possession follow from the fact that it arises from possession. There is an important limitation on the rule that bare possession is title good against all the world except the true owner. American courts hold that a bare possessor of land cannot recover full damages for a permanent injury. In Winchester v. City of Stevens Point 40 the defendant constructed a high embankment which caused the flooding of plaintiff's lot. The plaintiff recovered in the trial court for the permanent depreciation of her property. She had to rely upon possessory title, as she failed to prove a good paper title owing to the fact that two deeds had only one subscribing witness. It was held that, as in condemnation proceedings, plaintiff must show absolute or complete title and that title will not be presumed for this purpose from evidence of possession under claim of title. Apparently plaintiff must show either (1) a complete chain of title from the Government, or (2) title by adverse possession.11

In a recent Illinois case it is held that where title by adverse possession becomes complete after a cause of action for permanent injury to the land from flooding accrues, the plaintiff corporation

39 Ricard v. Williams, 7 Wheat. (U. S.) 59 (1822); Bond v. O'Gara, 177 Mass. 139, 58 N. E. 275 (1900). See Jasperson v. Scharnikow, 150 Fed. 571 (1907), 15 L. R. A. (N. S.) 1178 n.

40 Winchester v. City of Stevens Point, 58 Wis. 350, 17 N. W. 3, 547 (1883).

41 See also the following cases: Waltemeyer v. Wisconsin Ry. Co., 71 Iowa, 626, 33 N. W. 140 (1887); Kelly v. New York Ry. Co., 81 N. Y. 233 (1880); Frisbee v. Marshall, 122 N. C. 760, 765; 30 S. E. 21 (1898); International Ry. Co. v. Ragsdale, 67 Texas, 24, 28, 2 S. W. 515 (1886). Compare the case of the bailee suing for the full value of property lost or destroyed. The Winkfield, [1902] P. 42. U. S. Fidelity, etc. Co. v. United States 246 Fed. 433 (1917); 31 HARV. L. REV. 1028, 1029.

cannot recover, as it did not have (absolute) title to the land by adverse possession or otherwise at the time the right of action accrued.

"That its title became complete by prescription after the cause of action accrued places it in no different position from what it would have been if it had not been in possession but had acquired title by conveyance after the right of action accrued." 42

This case may be explained on the theory that the statute of limitations simply quiets that title which the adverse possessor already has by virtue of his possession, and the doctrine of relation does not cure any defects in the possessory title except the former owner's right to recover possession.

The statutory extinguishment of the title of the dispossessed owner of land does not destroy easements or restrictive covenants, and it has been held that persons entitled to the benefit of restrictive covenants may enforce them against the new owner by adverse possession. These burdens and privileges with reference to the land are not incident to the estate of the dispossessed owner, and adverse possession of the land does not destroy them, if there is no adverse user.

The efficiency of the doctrine of adverse possession in quieting title is greatly impaired by reason of two exceptions to the operation of the statute, viz., that of disabilities and that of future estates. It has been proposed by the American Association of Title Men (1913), in order to render land titles simpler and more secure, to reduce the period of limitation on actions to recover land to ten years, and to abolish the saving clauses for persons under disability. If titles were quieted by possession regardless of disabilities, such as absence from the state, infancy, insanity, coverture, or imprisonment, this would add greatly to the security of all titles, and we should then be able to rely on mere lapse of time, coupled with proof of continuity of possession and claim of title, to cure all defects and automatically to quiet titles. Friends or relatives or guardians will ordinarily protect the rights of owners under dis

42 La Salle Coal Co. v. Sanitary District, 260 Ill. 423, 430, 103 N. E. 175 (1913). See also 27 HARV. L. REV. 496; 20 HARV. L. REV. 563; 13 MICH. L. REV. 562; Perry v. Clissold, [1907] A. C. 73.

43 In re Nisbet & Potts' Contract, [1905] 1 Ch. 391; [1906] 1 Ch. 3861, 2 B. R. C. 844, 860.

ability, and individual cases of hardship would be more than balanced by the greater security of all titles.

By the general rule, the statute of limitations on ejectment does not begin to run against a remainderman, or the holder of any other future interest until the preceding estate terminates, and he becomes entitled to immediate possession. This is based on the proposition that the right of action does not accrue until that time, as he has no right of action until he is entitled to possession. It follows that while a life estate is outstanding, no one can initiate a holding adverse to the remainderman.44

The consequence is that, although one may hold possession of land for twenty years, claiming to own it absolutely against all the world, and may have color of title and pay taxes thereon, yet this possession will not be adverse to the holder of any future interest, although the claim may be brought home to the remainderman.45

By a somewhat daring piece of judicial legislation it has been held in Iowa and Nebraska that, where the statutes give a person out of possession an equitable remedy to quiet title, a remainderman may be barred by adverse possession where he has notice of the adverse holding.46 It is urged that the purpose of the statute is to provide a way to settle disputed questions of title between those in possession of land and those who claim a future interest. Where an adverse claim of ownership is brought home to the holder of such future interest, his welfare, as well as that of the public in general, is best subserved by requiring that questions of title be settled within the statutory period. Accordingly, ejectment and all other remedies will be barred if the remainderman allows ten years to elapse after his right of action to quiet title accrues and thereafter the adverse possessor can quiet title in himself.47

It may be argued that the barring of one remedy, viz., an action to quiet title, should not affect other remedies which have not yet

44 Mixter v. Woodcock, 154 Mass. 535, 28 N. E. 907 (1891); Bohrer v. Davis, 94 Neb. 367, 143 N. W. 209, 148 N. W. 320 (1913); Wakefield v. Yates, [1916] 1 Ch. 452. 45 Com. v. Clark, 119 Ky. 85, 83 S. W. 100 (1904); Gindrat v. W. Ry. Co. (Ala.) 19 L. R. A. 839 (1893), note; Barrett v. Stradl, 73 Wis. 385, 395; 41 N. W. 439 (1889); Dawson v. Edwards, 189 Ill. 60, 59 N. E. 590 (1901); Cassem v. Prindle, 258 Ill. 11, 101 N. E. 241 (1913); but cf. Nelson v. Davidson, 160 Ill. 254, 43 N. E. 361 (1896).

46 Criswell v. Criswell, 101 Neb. 349, 163 N. W. 302 (1917). See also Marray v. Quigley, 119 Iowa, 6, 92 N. W. 869 (1902); Crawford v. Meis, 123 Iowa, 610, 99 N. W. 186 (1904).

47 Holmes v. Mason, 80 Neb. 448, 114 N. W. 606 (1908).

accrued.48 But this is something that the courts have done in limiting equitable actions by analogy to the statute of limitations on ejectment; and if policy demands it, a reciprocal limitation of legal actions by analogy would seem equally justifiable. Opinions may differ as to the justice of such extension of the doctrine of adverse possession, but it would have the beneficent effect of bringing up for settlement disputed questions of title before they become stale, and would obviate one of the most serious defects in this automatic method of quieting titles against possible adverse claims which now arises from our undue tenderness towards the holders of future interests.

II

PRIVITY AND TACKING BETWEEN SUCCESSIVE HOLDERS

It is the almost universal rule of law as laid down by decisions in this country that "privity of estate" is necessary between successive adverse holders to authorize "tacking" their several possessions together.49 The several occupancies must be so connected that each occupant can go back to the original entry or holding as a source of title. The successive occupants must claim through and under their predecessors and not independently to make a continuous holding united into one ground of action. It is generally held that this connection may be established by any of the usual methods of transferring title, voluntary or involuntary, and also by the mere informal delivery of possession by mutual consent. There is privity between ancestor and heir, testator and devisee, vendor and vendee, lessor and lessee, judgment debtor and execution purchaser.50 Privity is not presumed. The burden of proving privity is on the one claiming by adverse possession.51

In the absence of formal transfer of title, some difficulty may

48 2 MINN. L. REV. 137.

49 2 CORPUS JURIS, 84-90; BUSWELL, LIMITATION AND ADVERSE POSSESSION, § 239; WOOD ON LIM., 4 ed., § 271; Ely v. Brown, 183 Ill. 575, 597, 56 N. E. 181 (1900); Davock v. Nealon, 58 N. J. L. 21, 32 Atl. 675 (1893).

50 Overfield v. Christie, 7 S. & R. (Pa.) 173 (1821); 2 CORPUS JURIS, 85-90; AMES, LECTURES ON LEGAL HIST., 203, 204. In South Carolina tacking is allowed only between ancestor and heir. Lewis v. Pope, 86 S. C. 285, 68 S. E. 680 (1910); Mazyck v. Wight, 2 Brev. (S. C.) 151, 153 (1807).

51 Doe v. Brown, 4 Ind. 143 (1853); Ryan v. Schwartz, 94 Wis. 403, 69 N. W. 178 (1896).

arise in showing any recognized connection to permit tacking possessions. Thus where a widow continues in the possession of land held adversely by her deceased husband, it has been held that the widow is not entitled to tack her husband's possession to her own. It is argued that, since the widow has no right in the land before her dower is assigned, her entry is a new disseisin. Privity

is, however, worked out between husband and wife in numerous cases, which hold that the widow's holding, if in subordination to the heirs at law, may be tacked to that of her husband. Although the widow is neither heir, devisee, nor grantee and does not succeed to her deceased husband's inchoate title, yet if she occupies under her dower, quarantine or homestead right, or as guardian of her children, her possession may be tacked to that of her husband so that it will enure to the benefit of the heirs.54

The holding of a decedent and his personal representative cannot be tacked unless there is a legal right of possession to administer the decedent's lands.55 It is, however, held that the possession of real estate by an executor with power of sale may be tacked to that of his testator in establishing title by adverse possession.5 The possession of the executor or administrator may be deemed a continuance of that of the deceased, where by statute he has the right to take possession of the real estate and actually does so for the benefit of the estate. The continuity of adverse possession is not interrupted by the ordinary lapse of time between the deceased's death and the appointment of an administrator and the taking of possession by him.

It is submitted that there cannot be tacking between testator and devisee under a void will, as there would be no transfer or delivery of possession, and the inchoate possessory title would devolve upon the heir, who would be the only one who could continue the same claim of title, and take advantage of the ancestor's

"Doe v. Barnard, 13 Q. B. 945 (1849); Sawyer v. Kendall, 1o Cush. (Mass.) 241 (1852); Robinson v. Allison, 124 Ala. 325, 27 So. 461 (1899).

53 Mielke v. Dodge, 135 Wis. 388, 393, 115 N. W. 1099 (1908); 14 HARV. L. REV. 149; 17 HARV. L. Rev. 277.

Atwell v. Shook, 133 N. C. 387, 45 S. E. 777 (1903); Johnson v. Johnson, 106 Ark. 9, 152 S. W. 1017 (1912); Jacobs v. Williams, 173 N. C. 276, 91 S. E. 951 (1917). Tennessee Iron Co. v. Ferguson, 35 S. W. 900 (Tenn. Chan. App. 1895).

Cannon v. Prude, 181 Ala. 629, 62 So. 24 (1913); Vanderbilt v. Chapman, 172 N. C. 809, 90 S. E. 993 (1916).