§ 439. Personal disabilities.

The statute of limitations invariably extends the period for bringing an action to recover land in case the plaintiff was under disability at the time the right of action accrued. The Statute of James I. contained such an exception in favor of (1) persons under twenty-one years, (2) femes covert, (3) persons non compos mentis, (4) persons impris oned, and (5) persons "beyond the seas."

The saving clause in favor of infants is retained in most, if not all, of the state statutes, though the time at which infancy ceases differs in different states. The saving in favor of married women also still exists in the majority of states, though in some it has been expressly abolished, in view of legislation enabling a married woman to sue alone. The saving in favor of persons non compos mentis is usually retained, and those in favor of persons imprisoned and of persons "beyond the seas," or, what is regarded as equivalent, "absent from the United States," are also frequently to be found. In some states, moreover, there are exceptions in favor of alien enemies. The statutes differ greatly as to the extent of time after the removal of the disability within which an action may be brought, some naming the full period of limitation, and others naming a much shorter period.27

These exceptions in statutes limiting the time for the recovery of land, as well as in those applicable to personal actions only, are usually construed as applicable only to a disability existing at the time of the accrual of the right of action, and the fact that a disability in the owner to sue arises after such accrual does not affect the running of the statute.28

27 The statutory provisions as to disabilities are summarized in Wood, Limitations (3d Ed.) § 237.

28 Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 8 Am. Dec. 476, Finch's Cas. 1047; Doe d. Caldwell v. Thorp, 8 Ala. 253; Currier v. Gale, 3 Allen (Mass.) 328; Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235.

Accordingly, if the right of action has once existed in favor of a person, the fact that it passes by descent to one under the disability of infancy does not extend the time for bringing suit.29 And if a disability existing at the time of the disseisin or other accrual of the cause of action is once removed, the fact that a subsequent disability intervenes, as when an infant, after arriving at age, marries, such subsequent disability does not operate in her favor.30

If the owner of the land is under two or more disabilities at the time of the accrual of the cause of action, he may take advantage of both, or, rather, of the one which endures the longest; but if only one disability exists at that time, he can take advantage of that alone, and the fact that, before such disability terminates, another intervenes, as when an infant feme sole marries, does not extend the time for the recovery of the land, or, as it is frequently stated, disabilities cannot be "tacked."32 Likewise, the disabilities of different persons cannot be tacked, in order to make up the

29 Harris v. McGovern, 99 U. 8. 161, affirming 2 Sawy. 515, Fed. Cas. No. 6,125; Doyle v. Wade, 23 Fla. 90, 11 Am. St. Rep. 334; Burdett v. May, 100 Mo. 13; Ray v. Thurman's Ex'r, 13 Ky. Law Rep. 3, 15 S. W. 1116; Lynch v. Cox, 23 Pa. St. 265; Jackson v. Moore, 13 Johns. (N. Y.) 513, 7 Am. Dec. 398; Oates v. Beckworth, 112 Ala. 356; Castro v. Gell, 110 Cal. 292, 52 Am. St. Rep. 84. Contra, Everett's Ex'rs v. Whitfield's Adm'rs, 27 Ga. 133.

30 Gherson v. Brooks (Ark.) 5 8. W. 329; Keil v. Healey, 84 III. 104, 25 Am. Rep. 434.

81 Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Butler v. Howe, 13 Me. 397; North v. James, 61 Miss. 761; Keeton's Heirs v. Keeton's Adm'r, 20 Mo. 530.

82 Bunce v. Wolcott, 2 Conn. 27, 3 Gray's Cas. 104; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 8 Am. Dec. 476, Finch's Cas. 1047; Duckett v. Crider, 11 B. Mon. (Ky.) 188; White v. Clawson, 79 Ind. 188; Cozzens v. Farnan, 30 Ohio St. 491, 27 Am. Rep. 470; McFarland v. Stone, 17 Vt. 165, 44 Am. Dec. 325; Nutter v. De Rochemont, 46 N. H. 80; Thompson v. Smith, 7 Serg. & R. (Pa.) 209. Contra, Miller v. Bumgardner, 109 N. C. 412.

statutory period; and so, if the owner is under a disability from the time of the accrual of the disability till his death, his infant heir cannot tack his own disability to that of his ancestor, in order to extend the statutory period.83

440. Exception in favor of the sovereign.

According to the maxim Nullum tempus occurrit regi, the adverse possession of land belonging either to the United States or a state, cannot, unless the statute otherwise provides, divest the government title. The statutory limitation begins, however, to run in favor of one in hostile possession of public land so soon as its ownership passes to a grantee of the government. In determining the time at which the private ownership begins for this purpose, the decisions are not in accord, some holding that it does not begin until the issue of the patent,35 while others consider it as beginning so soon as, by payment for the land, the individual has become entitled to a patent.

The question whether the statute runs against a municipal or quasi municipal corporation, so that adverse possession of its land for the statutory period will bar recovery by the mu

88 Dowell v. Tucker, 46 Ark. 438; Griswold v. Butler, 3 Conn. 227; Pim v. City of St. Louis, 122 Mo. 654; Henry v. Carson, 59 Pa. St. 297; Jackson v. Houston, 84 Tex. 622.

34 Gibson v. Chouteau, 13 Wall. (U. S.) 92; Wagnon v. Fairbanks, 105 Ala. 527; Munshower v. Patton, 10 Serg. & R. (Pa.) 334, 13 Am. Dec. 678; Doran v. Central Pac. R. Co., 24 Cal. 245; Twining v. City of Burlington, 68 Iowa, 284; Hall v. Gittings' Lessee, 2 Har. & J. (Md.) 112; Hall v. Webb, 21 W. Va. 318. See, as to statutes on the subject, 2 Dembitz, Land Titles, § 179.

Boley, 7 Utah, 64;

35 Smith v. McCorkle, 105 Mo. 135; Steele v. Stringfellow v. Tennessee Coal, Iron & Railroad Co., 117 Ala. 250; Mathews v. Ferrea, 45 Cal. 51; Chiles v. Calk, 4 Bibb (Ky.) 554.

86 Patten v. Scott, 118 Pa. St. 115, 4 Am. St. Rep. 576; Udell v. Peak, 70 Tex. 547; Nichols v. Council, 51 Ark. 26, 14 Am. St. Rep. 20.

nicipality, has been the subject of much discussion, and the decisions are not in accord on the question. In the majority of the states, land owned by a municipality, and devoted to uses of a purely public character, as when the "fee" of a street or park is vested in the municipality, or land is conveyed to the municipality for a public building, hospital, or the like, the municipality is regarded as merely the agent of the state, and its rights cannot be divested by adverse possession,37 though in a number of states a different view obtains.88 But even in the former class of states there is a tendency to distinguish between land devoted to public use and that which is held by the municipality in a "private capacity," and over which it has the power of alienation, the latter being regarded as subject to the bar of the statute.3

§ 441. Actual and visible possession.

sary

In order to confer title by adverse possession, it is necesthat there be an actual entry on the land, and the mere fact that one has what purports to be a conveyance of the land, or other paper title, is never sufficient. 40 Nor is an

87 Almy v. Church, 18 R. I. 182; Cheek v. City of Aurora, 92 Ind. 107; Webb v. City of Demopolis, 95 Ala. 116; Kittaning Academy v. Brown, 41 Pa. St. 269; Board of Education of City and County of San Francisco v. Martin, 92 Cal. 209; Taraldson v. Incorporated Town of Lime Springs, 92 Iowa, 187; Ralston v. Town of Weston, 46 W. Va. 544; City of Sullivan v. Tichenor, 179 Ill. 97. See 2 Dil. lon, Mun. Corp. (4th Ed.) §§ 667-675.

88 Oxford Township v. Columbia, 38 Ohio St. 87; City of Covington v. McNickle's Heirs, 18 B. Mon. (Ky.) 262; City of Fort Smith v. McKibbin, 41 Ark. 45, 48 Am. Rep. 19; Village of Wayzata v. Great Northern Ry. Co., 50 Minn. 438.

39 See Simplot v. Chicago, M. & St. P. Ry. Co. (C. C.) 16 Fed. 350; Ames v. City of San Diego, 101 Cal. 390; City of Chicago v. Middlebrooke, 143 Ill. 265; City of Bedford v. Willard, 133 Ind. 562; 2 Dillon, Mun. Corp. (4th Ed.) 675.

40 Thayer v. McLellan, 23 Me. 417; Walker v. Hughes, 90 Ga. 52; Christy v. Spring Valley Water Works, 97 Cal. 21; Lipscomb v.

entry on the land sufficient, unless it is followed by such acts of dominion over the land as will constitute what the law regards as actual possession of the land. What is sufficient to constitute this actual possession depends upon the character of the land and all the circumstances of the case. It involves, as a general rule, the doing of acts of dominion on the land, sufficiently pronounced and continuous in character to charge the owner with notice that an adverse claim to the land is asserted. Continued residence on the land is no doubt sufficient to show actual possession;41 and cultivation or otherwise improving the land has been regarded as sufficient in particular cases,12 and the erection of a fence around the land may, in some cases, be sufficient.43 On the other hand, a merely occasional and sporadic use of the land, an occasional entry to cut timber or grass, or to appropriate other products or profits of the land, does not constitute actual possession. The question whether, in any particular case, there was an actual possession of the land, is usually one of fact for the jury under the instructions of the court.45

44

McClellan, 72 Ala. 151; White v. Burnley, 20 How. (U. S.) 235; Ward v. Cochran, 150 U. S. 597, Finch's Cas. 1013.

41 Susquehanna & W. V. Railroad & Coal Co. v. Quick, 68 Pa. St. 189; Alabama State Land Co. v. Kyle, 99 Ala. 474. Under some of the "short limitation" statutes, actual residence is necessary. Stumpf v. Osterhage, 94 Ill. 115; Chiles v. Jones, 4 Dana (Ky.) 479. 42 Butler v. Drake, 62 Minn. 229; Susquehanna & W. V. Railroad & Coal Co. v. Quick, 68 Pa. St. 189; Congdon v. Morgan, 14 S. C. 587; Crapo v. Cameron, 61 Iowa, 447; Finn v. Wisconsin River Land Co., 72 Wis. 546; Johns v. McKibben, 156 111. 71.

48 Moore v. McCown (Tex. Civ. App.) 20 S. W. 1112; Brumagim v. Bradshaw, 39 Cal. 24, 50.

44 Bazille v. Murray, 40 Minn. 48; Denham v. Holeman, 26 Ga. 182, 71 Am. Dec. 198; Parker v. Wallis, 60 Md. 15, 45 Am. Rep. 703; Cornelius v. Giberson, 25 N. J. Law, 1; Williams v. Wallace, 78 N. C. 354; Wheeler v. Winn, 53 Pa. St. 122, 91 Am. Dec. 186; Wilson v. Blake, 53 Vt. 305; Parker v. Parker, 1 Allen (Mass.) 245. 45 Anderson v. Bock, 15 How. (U. S.) 323; Truesdale v. Ford, 37