¶1The opinion of the court was delivered by
¶2Two questions are presented in this case, one on the admission of the book purporting to be records of the original proprietors, the other on the charge of the court.
¶3The book was not evidence of a legal division. The proprietors were not a corporation before the date of their charter. But as a division in fact, it was properly admitted. It was not uncommon for proprietors to petition for a grant of land under the authority of the state, and,on a resolution being passed in favor of the grant, to act as proprietors and make division of their lands before their charter was issued. The division made in the town of Franklin, under which the plaintiff claims, appears to be the only division ever made of the lands in that town. No proprietor has ever questioned its legality, but it has always been treated and acted on as the division of the lands in that town. As evidence of a divis*133ion in fact, particularly against a stranger, the book was proper and legal evidence.
¶4On the other question, as to the charge, it is sufficient to remark, that the plaintiff having proved a title and also a possession of the lot in question, the several acts relied on by the defendant did not show him in possession any further than the extent of his actual clearing. He claimed no title to the whole lot, and cannot have any other than an actual possession, so far as his clearing extended. When- the owner of a lot, who has an undisputed title, is in actual possession of any part, a mere trespasser, without any claim of title, cannot be treated as in possession, either adversely to or jointly with the owner by doing the acts which the defendant did in the case before us; and although.they might have been considered as acts or as evidence of possession, if he had a claim of title to the whole lot, and might have been a disseisin of the owner, yet they were not of that character when the owner was in actual possession, as the plaintiff was in the case before us. — . The judgment of the county court is, therefore, affirmed.