¶1delivered the opinion of the Court. We think that this case must be sent to the jury, to ascertain the facte which are material for a right decision of it.
¶2It appears that the land in controversy is in Provinóetown, and incapable of cultivation ; and that it was unoccupied and lay waste, until these parties attempted to occupy it.
¶3The plaintiff attempts to prove an entry by himself, and a staking out of the limits of the land in 1824, claiming to hold the same in fee, and that he has continued his claim and possession by keeping up the stakes around the exterior lines, and oy building salt-works within a part of the lot so claimed, staked out and possessed.
¶4The defendant pleaded that the soil and freehold belonged to him ; and would establish his right by his entry upon the land and building a fence around it.
¶5The right of the parties therefore is to depend upon the question, which of them was the first occupant. What acts amount to a sufficient occupation, must depend upon the nature of the soil, and the uses to which it is to be applied. *188Enough must appear to show that the party claiming has entered upon the land and has indicated in some way the extent of his claim, and that the possession followed and was kept up according to the nature and situation of the property.
¶6If the defendant had knowledge of the entry and claim, and taking of possession, of the plaintiff, it would seem to us to be very clear that the right of the plaintiff should not be disturbed by the subsequent entry of the defendant, he then having and claiming no other right than accrued to him by such entry and fencing.
¶7Whether or not the defendant knew that the plaintiff had put or driven stakes around the land as indicating the extent of his possession and claim, would be a material fact, and should be settled by the jury, and not by the Court. If he did, the jury should be instructed that the entry of the defendant and building the fence on the land so before staked out, claimed and possessed by the plaintiff, would be a trespass.
¶8. So the evidence offered by the plaintiff, to prove that such an inclosing with stakes has been acquiesced in as a valid possession, by the people of Provincetown, was relevant and competent.
¶9The Court are of opinion, that the verdict shall be set aside, and that the case shall be sent to the jury, with instructions, that if the jury should find that the plaintiff did drive stakes around the land with intent to take possession, and that such inclosing has been acquiesced in as a valid possession, by the people of Provincetown, and that the plaintiff did enter and claim the same accordingly, before the defendant entered and built his fence, and that the defendant knew, or by ordinary care might have known those facts, then the verdict should be for the plaintiff; and that the mode usually practised by the people of Provincetown, touching the taking and continuing of possession, was competent and proper evidence for the consideration of the jury, in ascertaining the intent with which the acts of the plaintiff were done upon the premises.