¶1*503The opinion of the court was delivered by
¶2A question is made, whether the plaintiff in this case is at liberty to raise any question in this court, to the decision of which he did not except in the county court. We think, where any question arises in regard to the charge of the court, — which they are always bound to give according to the rules of law applicable to the case, — whether specifically requested so to do, or not, and the court below allow exceptions and spread the charge upon the record, it is competent for the party, against whom the case is decided, to remove the case into this court, upon the exceptions, or by writ of error, at his election, and that this court are bound to revise all questions made in regard to such charge, whether it was at the time excepted to, or not. That rule of the county court, by which exceptions to the charge to the jury are required to be taken before the jury retires, is one of practice merely, and cannot be regarded in this court.
¶3But this court has often held, that where a party omits to raise any question in the course of a trial, which might be obviated, if taken at the time, like a variance between the proof of the issue, and many others, the party is to be regarded as having waived such exception. And the same rule ought perhaps to be applied to any unintentional omission of the court to charge upon a point in the case, which the court would of course have done, if the matter had been brought to the attention of the court at the proper time.
¶4But where it appears, upon the charge as given, that it was not according to law, a new trial will always be granted. But in the present case we have not been able to satisfy ourselves, that any such error did intervene. The instructions to the jury, in regard to the fence, seem to this court wholly unobjectionable. We suppose one may have the constructive possession of land, as well without written claim of title, as with it. Every possession of land, upon which there are no permanent erections, either of buildings, or fence, must be more or less constructive, unless for some purpose the occupancy is constant, which is not often the fact in such cases. One might have a lane open into his door yard, or pasture, and still be as fully in the constructive possession of it, although he might not in fact actually go upon the land ten times in the year, and not remain in the actual occupancy of the land one day in the three hun*504dred and sixty five, as if he had erected fences entirely around it. So, too, if one’s fence is in such a form, as to clearly indicate, that, when completed, it will include a portion of wood land, which the party now only uses for making sugar, or cutting wood, the person must be regarded as in the constructive possession of the whole lot, although there be no paper claim, or color of title.
¶5Color of title, it has often been held, need not be a technical deed of the land, and is important to give constructive possession of land only, as being definite, not subject to variation from time to time, and something, also, which, it is presumed, any adverse claimant to the land may ascertain upon inquiry, and which therefore he is presumed to know. But where the manner of occupying a portion of the land clearly indicates to every observer the extent of one’s claim of possession, every occasional entry of such possessor will be construed an act of possession, and not a bare trespass, — which it would be in one making no claim of title; and this is all that is meant by constructive possession. Judgment affirmed.