ÆäÀÌÁö À̹ÌÁö
PDF
ePub

"to render it availing. (Brandt. vs. Ogdens, 1 Johns. Rep. "156.)"

An adverse possession, is, "a possession under colour of title, taken by a man himself, his servants, slaves or tenants, and by him or them continued without interruption for seven years together." Grant vs. Winborne, 2 Hayw. Rep. 57.

Actual ouster, and adverse possession, of any lands, tenements, or hereditaments, for fifteen years after the title, or cause of action accrued, and before suit brought, bars the plaintiff of his right of entry thereafter, whether the ouster and adverse possession be by the same person or persons, for the whole term of fifteen years, or by different persons for different periods, making fifteen years in the whole; provided the disseisin and adverse possession have been continued and uninterrupted; and provided, that the plaintiff does not come within any of the exceptions mentioned in the provisoes of the Statute, extending the term of time, in which entry may be made. Fanning vs. Wilcox & Palmer, 3 Day's Rep. 269.

To make out an adverse possession, the defendant must prove actual possession by enclosure of the tract which he claims, for upwards of twenty years. Gibson vs. Martin, 1 Har. & Johns. Rep. 545.

Twenty years possession, under a vague unsurveyed entry, affords protection, as an adverse possession, only to the extent of the actual close. Henderson vs. Howard's Devisees, 1 Marsh. Rep.

(Ky.) 26.

The settlement required by the Statute, limiting the time of bringing suits against actual settlers, is a settlement and residence on the land; clearing and cultivating the land is not sufficient. Hog. vs. Perry, 1 Littell's Rep. 171. Smith vs. Nowells, 2 Ibid. 160. Hite's heirs vs. Shrader, 3 Ibid. 446. & Vide Skyles' heirs vs. King's heirs, 2 Marsh. Rep. (Ky.) 385. Anderson vs. Turner, 3 Marsh. Rep. (Ky.) 133. Bodley vs. Coghill's heirs & Hord, Ibid. 615. Moore vs. Farrow & Al., Ibid. 49.

66

To prevent the recovery in Ejectment by a Plaintiff having title, it is necessary to shew on the part of the Defendant, an actual and continued occupancy of the land in dispute, for twenty years; and most certainly the occasional cutting of timber upon the land, does not amount to such a continued occupancy." Braxdale vs. Speed, 1 Marsh. Rep. (Ky.) 106. Smith vs. Mitchel, Ibid. 207. & Vide Trotter vs. Cassady & Al. 3 Marsh. Rep. (Ky.) 366.

In the case of Cheney vs. Ringgold & Al., Lessee, (2 Harr. & Johns. Rep. 87, 95.) BUCHANAN, J. delivering the Opinion of the

Court, said; "Even if the defendant's possession by enclosure "commenced first, which is not stated to be the case, that, and "his cutting timber exterior to the fences, could not have prevent"ed the constructive possession vesting by operation of law, in "Jordan, of all the unenclosed parts of The Number of Two, on "the actual entry and enclosure made by him, and those claiming "under him, upon a part of that tract of land, within twenty years "from the date of the grant, claiming title to the whole. But if "the possession, by enclosure, of the lessors of the plaintiff, and "those under whom they claim, commenced first, and for any thing appearing in the record that may have been the fact, sure"ly no cutting, &c. by the Cheneys, exterior to their enclosures, "could so divest the possession, cast by law upon the plaintiff, of "the unenclosed parts of The Number of Two, as to let in the ope"ration of the act of limitations."

66

The possession that will give a title under the Statute of Limitations, must be an actual occupancy, a pedis possessio definite, positive and notorious. Bailey & Al. vs. Irby & Al., 2 Nott & M'Cord's Rep. 343.

Digging a canal and felling trees are not such acts of possession, as may be the basis of the prescription of thirty years. Macarty vs. Foucher, 12 Martin's Rep. 11. & Vide Prevost's heirs vs. Johnston & Al., 9 Martin's Rep. 123.

[ocr errors]

"The occasional exercise of dominion, by broken and unconnect"ed acts of ownership, over property which may be made permanently productive, is, in no respect, calculated to assert to "the world, a claim of right; for such conduct bespeaks, rather "the fitful invasions of a conscious trespasser, than the confident "claims of a rightful owner." Den ex dem. Jones vs. Ridley, 2 N. Car. Law. Rep. 400. (Per TAYLOR, CH. J. delivering the Opinion of the Court.)

61

But in the case of Robinson vs. Swett & Al., (3 Greenl. Rep. 315, 319.) it was said, that the lands in dispute, "being wild and uncultivated, the jury were 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 trespass

[blocks in formation]

Where the owners of contiguous lands "have established a fence varying from the line described in the deeds, and each party

has held and occupied up to his side of the fence, claiming to hold accordingly, for twenty years; neither can maintain a possessory action against the other." "But where the parties have agreed upon a fence variant from the line, avowedly for convenience, and still have continued to claim according to the true line, neither party acquires a title, or even a right of possession against the other, merely on account of the fence." Burrell vs. Burrell, 11 Mass. Rep. 298.

If the defendant in ejectment set up the Act of Limitations, he must stand on his own posssesion, and cannot call in the possession of one whose title the plaintiff has purchased, to assist him. Gluggage & Al. vs. Duncan, 1 Serg. & R. Rep. 111.

"Residence is not necessary, to make an adverse possession. Land may be inclosed and cultivated without residing on it. And the possession is as much adverse in one case as in the other." Johnston vs. Irwin, 3 Serg. & R. Rep. 292.

A title by warrant and survey, without patent, is within the Act of Limitations of 26th March, 1785, [Pennsylvania] and is barred by an adverse possession of twenty-one years. M'Koy vs. The Trustees of Dickinson College, (In Error,) 4 Serg. & R. Rep. 302.

[ocr errors]

In the case of Pederick vs. Searle, (5 Serg. & R. Rep. 240.) TILGHMAN, Ch. J. delivering the Opinion of the Court, said; Let us consider then, the force of the other reason urged by the plaintiff; that the possession having been delivered to the plain"tiff by virtue of a recovery in a Court of Justice, the Act of Lim"itations was thereby avoided, because the continuity of the de"fendant's possession was broken. If the continuity of posses"sion had been broken, before the expiration of 21 years, the period required to give effect to our Act of Limitations, the argument would have been good. An entry within the 21 years, destroys the efficacy of all prior possession, so that to gain a title "under the Act of Limitations, a new adverse possession for 21 years must be had."

[ocr errors]

A possession to prevent a recovery, or vest a right under the Statute of Limitations, must be actual, continued, adverse and exclusive. An easement claimed out of the land of another, can never be the subject of such limitation, for it is not constant, exclusive, and adverse; but a continued exclusive possession and enjoyment, with the knowledge and acquiescence of the owner of the inheritance, for twenty-one years, would be evidence from which a jury might presume a right, by grant or otherwise, to such easement. Cooper & Al. vs. Smith, 9 Serg. & R. Rep. 26.

Persons having a right of entry into land at the time of passing the Act of Limitations of the 26th March, 1785, are not barred by an adverse possession of 18 years from that time; there must be 21 years adverse possession to bar them of their right, whether their right existed before or arose after that act. Packer's Lessee

vs. Gonsalus, (In Error,) 10 Serg. & R. Rep. 147.

"Possession of land so as to produce a bar, must be an actual possession of some part in dispute. Cultivation of part of the defendant's claim, not within the bounds of the disputed part, is not sufficient to authorize the bar of the Statute." Napier's Lessee vs. Simpson, 1 Tenn. Rep. 453.

But it has been held, that a constructive adverse possession of a small tract of land, may be admitted where the Defendant has a paper title for such small tract, although he has been in the actual occupancy of only a part of such tract.

In Ejectment, the defence of 20 years adverse possession, in order to countervail a legal title, must be supported by 20 years actual occupancy, or a substantial enclosure of the premises by the Defendant, or by him and those through whom he derives title. A cultivation of part of the premises for that time, with a claim of title to the whole, will not constitute a defence beyond the portion actually improved. And even where such possession is under a deed or paper title, for a large tract of land (e. g. 783 Acres,) and only a small part is improved (e. g. 2 Acres,) with a claim of title to the whole, this will not constitute an adverse possession, beyond the actual improvement. And where one takes a deed, purporting to describe a tract of land; but which, by a mistake in the description, covers nothing; and the grantee, by occupation, takes possession of a part, and claims title to the whole of the supposed tract, under the deed, this is an adverse possession only as to the part actually improved. And, accordingly in Jackson ex dem. Dervient vs. Loyd, decided October Term, 1820, but not reported, where the Defendant had a deed for Lot 4, but took possession of Lot 5, adjoining, believing it to be Lot 4, and claiming it as such, and improving a part: it was Held, that his adverse possession, did not extend beyond his actual improvements. The doctrine of the constructive adverse possession of lands, by the cultivation of part, accompanied by a claim of the whole, under a deed, does not apply to large tracts of land, not purchased for the purpose of actual cultivation. The doctrine is in general applicable to a single farm or lot of land, only, purchased for the purpose of actual cultivation. A constructive adverse possession, must be founded on a deed or paper title, though such title need not be a rightful one. Jackson ex dem. Gilliland & Al. vs. Woodruff & Al. 1 Cow. Rep. 276. & Vide Miller, &c. vs. Dow, 1 Root's Rep. 412

If a Defendant in an action of Ejectment, prove that he or those under whom he derived title, purchased the whole of the lot demanded-took a paper title therefor-went into possession under that title, and cleared one acre more than fifteen years before the commencement of the Plaintiff's action, and that the possession has accompanied such title, notwithstanding such title should prove invalid, he will hold the whole lot under the Statute of Limitations. A possession of a part under such purchase, being a possession of the whole, is a bar to the action, Doe ex dem. Pearsall vs. Thorp, 1 Chipman's Rep. 92.

If a patentee enters upon part of the land in controversy, with an intention of possessing the whole, it shall be considered as a possession of the whole; but if he enters upon a definite part. with a view to possess such part only, his possession is confined to such part. Bowman vs. Bartlett & Al. 3 Marsh. Rep. (Ky.) 99. Bodley vs. Cogshill's Heirs & Hord, Ibid. 615.

A lease of a small tract of land, e. g. 63 Acres, and an actual possession by the lessee, of a part, with a claim of title to the whole, constitutes an adverse possession of the whole.

And while it is so possessed, a conveyance, by any one except the adverse possessor, to another, of a part of the land so possessed, though it also include an adjoining parcel not so possessed, and the grantee enter upon the latter parcel, claiming to the whole extent of his conveyance, will not constitute the grantee, a constructive, or actual possessor, beyond the parcel on which he

enters.

If one have constructive possession by color of title, and occupying a part; another cannot acquire a constructive possession to the same extent in the same manner; but though the latter enter on part, with colour of title to the whole, and claim the whole, his possession will be confined in extent, to the part which he actually occupies. Jackson ex dem. Hasbrouck vs. Vermilyea, 6 Cow. Rep. 677. & Vide Calk vs. Lynn's Heirs, 1 Marsh. Rep. (Ky.) 346.

A settler taking possession under one claim, without intending to intrude on another, but accidentally intruding, acquires no interfering possession out of his actual close. Smith & Ál. vs. Morrow, 5 Littell's Rep. 210. M'Kinny vs. Kenny & Al. 1 Marsh. Rep. (Ky.) 460.

And this accidental and unintentional intruder selling his claim to another, (who holds an elder patent on the claim intruded on,) transfers no right of possession to his vendee, within the claim intruded on, except to the extent of the close. M'Kinny vs. Kenny & Al. 1 Marsh. Rep .(Ky.) 460.

« ÀÌÀü°è¼Ó »