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The opinion of the Court was drawn by

Appleton, C. J.

The plaintiff traces a record title to the demanded premises as far back as 1827, but does not pi ove that during the last thirty years, he, or those from whom he derives his title, have been in possession.

The tenant entered into possession of the land in controversy in 1831, and has remained in the undisturbed occupation of the same to the present time. When he first entered *452on the lot, most of it was in a state of nature. He has since cleared and fenced it — built a house and barn thereon — paid the taxes assessed on the same, and received the rents and profits accruing therefrom to the present time. He is not shown to have entered under an agreement to purchase nor to have occupied in subordination to the outstanding legal title of the plaintiff, or in any way to have recognized its existence.

Mere possession is the first degree of title and constitutes a valid right to real property, except as against the legal owner. A prior naked possession is sufficient to enable the possessor to maintain ejectment against an intruder. Hubbard v. Little, 9 Cush., 476. "Actual possession is prima facie evidence of legal title in the possessor, and it may, by length of time and negligence of him who hath right, by degree ripen into a perfect and indefeasible title.’’ 2 Black. Com., 389.

The tenant, so far as the case discloses, entered without color of right. His entry was a trespass. His continued possession was a series of continued trespasses. But every trespass, by force of the term, is adverse to the real owner. "There is a presumption,” remarks Gibson, C. J., in Patterson v. Reigle, 4 Barr., 201, "which lasts until it is rebutted, that an intruder enters to hold for himself, and it is not to bo doubted that a trespasser, entering to gain a title, though conscious that he is a wrongdoer, will accomplish his object if the owner' do not enter or prosecute his claim within the prescribed period. But, to do so, it is necessary that the possession be adverse from the first; and, to infer that he intended it to be other, would be to impute to him an inconsistency of purpose.”

"It appears,” observes Mellen, C. J., in The Proprietors of the Kennebec Purchase v. Laboree, 2 Greenl., 281, "that, on the trials which have taken place in the Supreme Judicial Court, before we became an independent State, it was never considered incumbent on the tenant, in the case of a count on the demandant’s own seizin, to prove anything *453more than his continued and exclusive possession and occupancy, for thirty years next before the commencement of the action, using and improving the premises, after the manner of the owner of the fee; such possession, occupancy and improvement, affoi’ding satisfactory evidence to the jury that such tenant claimed to hold the lands as his own.”

These views have received the sanction of the Legislature. "To constitute a disseizin, or such exclusive and adverse possession of lands as to bar the right of the true owner thereof to recover them, it shall not be necessary for such lands to be surrounded with fences or rendered inaccessible by water; but it shall be sufficient, if the possession, occupation and improvement are open, notorious, and comporting with the ordinary management of a farm; although that part of the same, which composes the woodland belonging to such farm, and used therewith as a woodlot, is not so enclosed.” B. S., 1857, c. 105, § 10.

The possession of the tenant was unquestioned. It had continued for thirty years. It was open and exclusive, resembling that of every farmer in the community in all its essential characteristics. The occupation of land, receiving rents and profits without rendering an account thereof to any one, clearing the land and erecting buildings thereon, are acts indicative of a claim of title adverse to all. These facts being established, it was for the demandant to show how such long continued occupation, under such circumstances, was consistent with a recognition of and subordination to his title, on the part of the tenant.

To constitute an adverse possession it is not necessary that there should be a rightful title. Disseizin excludes the idea of right. The fact of the possession, and the quo animo it commenced and continued, are the tests. The fact of open, notorious and exclusive possession was not controverted. The remaining inquiry related to the intention of the tenant. But this, by all the authorities, was a matter of fact to be determined by the jury and not by the Court. The intention may be ascertained by acts as well as by *454'words, — indeed, more satisfactorily by the former than the latter, — for words may be deceptitious, and are more likely to be so than a continued series of acts, all tending in one direction and loading to' one conclusion.

The presiding Judge peremptorily withdrew from the consideration of the jury the evidence which was before them. In this he erred. The intention of the tenant, whether occupying adversely or not, was for the jury. The verdict rendered was not their judgment upon the facts proved, but that of the presiding Judge.

It may not be amiss to remark, that, in the case as now presented, there is no proof of the material tacts upon which Mr. Justice Cutting rests his opinion in Eaton v. Jacobs, 49 Maine, 559. There is no evidence that the tenant entered in subordination to the legal title,, or with the intention or expectation of acquiring it by purchase. Of the correctness of his opinion, upon the facts before him, we have no doubt. But the law as there laid down is entirely inapplicable to the facts as now presented.

Exceptions sustained.

Davis, Walton, Dickerson, Barrows and Daneortii, JJ., concurred.Kent, J.,

concurred in the result, and submitted the following views: —

I concur in the result, because I consider the case of The Proprietors of the Kennebec Purchase v. Laboree, 2 Maine, 281, as an authority directly in point, and as binding upon the Court. That opinion, evidently, is based upon the fact, that the long continued practice in Massachusetts and in this State has settled the. law here, and not upon the doctrines of-the common law as elsewhere understood. O. J. Mellen, in that case, admits, in effect, that the decision cannot be sustained on the established principles of the common law as understood in England, or in other States of the Union. I think that, upon the general doctrines and analogies of the common law, the presiding Judge was justified *455in giving the directions he did. I do not propose to discuss the question at any length, but to state one or two principles, well established.

The demandant shows a perfect legal title to the land he claims. "Why should he not recover possession of what' he owns in fee? The tenant says he should not recover it. He shows no title by deed, — but he says I have a better title, acquired by disseizin' of the true owner. The issue between the parties is not about present possession, but about the title to the premises. The tenant says he has acquired a title, — not by grant, or by l’ight, but by a long continued wrong. No one doubts that he may thus acquire a title, — or at least such a right as enables him to hold against the real owner. But how is such a right or title acquired? Not by mere possession. It must have been an open, notorious, exclusive and continued possession for twenty years. But this is not.enough. It must have been also adverse to-the title of the true owner. All the other requirements may exist and yet be entirely consistent with an acknowledged possession in another. Possession, however open, exclusive and continued, does not itself import that it was adverse. It may be under a lease verbal or written, or under a life estate, or under a contract to cultivate. Indeed, the law always presumes that every possession is lawful'and under some right. It does not assume that a man is attempting to steal his neighbor’s land, and that he entered upon it without right and holds it as a naked trespasser, and in wrong and adversely to a legal title. This is an affirmative fact to be proved by the tenant, as the foundation of the title, which he sets up.

But it is said the Court and jury may infer that the holding was exclusive, because it is open, and adverse, and continued. And this is the whole question in this case. If this be so, why was this element of adverse holding inserted in the definition. If it is enough to prove the other points, or, if they constitute such disseizin as may represent a perfect title, why not omit the other?

*456An opea and exclusive possession does not justify the presumption that it was also adverse. The presumption is decidedly the other way. How can a jury be justified in inferring the existence of a fact, which cannot necessarily or even fairly be deduced from the facts proved, — which facts, are, at least, as consistent with honest holding in subserviency to some title, as with the assumption that the holding was in wrong and adverse to the true owner ? Why should the true owner be obliged to explain the nature of the holding by his adversary? The tenant, as all agree, is bound to establish the adverse nature of his holding as the very essence of his claim of title. He must establish this as an affirmative fact, either by direct proof of claim in words or by acts from which such adverse holding is fairly established. I do not see how it can reasonably be inferred from mere possession, — however open or exclusive.

There is less reason for so doing since the change of the law, by which parties and persons interested are allowed to testify as to their acts and intentions. Ought a party to be enabled to make out a title or right by adverse seizin, by proving mere actual possession for twenty years, without any other evidence as to the nature and object of his entry and holding, whilst he sits by his counsel, and declines to be examined as a witness ? This, as I understand it, was the fact in the case at bar.

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