Adverse possession

it is well settled, that to constitute an adverse possession, there need not be a fence, building or other improvement made; it suffices for this purpose, that visible and notorious acts of ownership are exercised over the premises in controversy, for twenty-one years, after an entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all cases. But it may with safety be said, that where acts of ownership have been done upon land, which, from their nature, indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant, without interruption, or an adverse entry by him, for twenty-one years; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him.

The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor. 3 East 394; Wallace v. Duffield, 2 S. & R. (Pa.) 527, 7 Am. Dec. 660; French v. Pearce, 8 Conn. 440, 21 Am. Dec. 680; Robinson v. Douglass, 2 Aik. (Vt) 364; Smith v. Burtis, 9 Johns. (N. Y.) 174; Jackson v. Huntington, 5 Pet. (U. S.) 402, 8 A prescriptive title rests upon a different principle from that of a title arising under the statute of limitations. Prescription operates as evidence of a grant and confers a positive title; Cruise, Dig. tit 31, ch. 1, § 4. The statute of limitations operates not so much to confer positive title on the occupant, as to bar the remedy. Hence it is said to be properly called a negative prescription; id. It applies only when there has been a disseisin or some actionable invasion of the real owner's possession; Clawson v. Primrose, 4 Del. Ch. 670 n. When such possession has been actual, Mather v. Ministers of Trinity Church, 3 S. & R. (Pa.). 517, 8 Am. Dec. 663, and has been adverse for twenty years, the law raises the presumption of a grant; Angell, Wat. Cour. 85. But this presumption arises only when the use or occupation would otherwise have been unlawful; Tlnkham v. Arnold, 3 Greenl. (Me.) 120; Jackson v. Richards, 6 Cow. (N. Y.) 617; Jackson v. Vermilyea, id. 677; Hall v. Powel, 4 S. & R. (Pa.) 456, 8 Am. Dec. 722. The statute of limitations is the source of title by adverse possession; Armijo v. Armijo, 4 N. M. (Gild.) 57, 13 Pac. 92. It is held to be not grounded upon the presumption of a grant; but is the fiat of the legislature cutting off the right to maintain suit; Louisville & N. R. Co. v. Smith, 125 Ky. 336, 101 S. W. 317, 31 Ky. L. Rep. 1, 128 Am. St. Rep. 254; and is for the interest of the stability of titles; Northern Pac. R. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L R. A. 526, 87 Am. St. Rep. 766. It protects the disseisor in his possession not out of regard to the merits of his title, but because the real owner has acquiesced in his possession; Foulke v. Bond, 41 N. J. L. 527. It must be complied with in every substantial particular; Brokel v. Mc Kechnie, 69 Tex. 33, 6 S. W. 623. A mere possession, without color or claim of an adverse title, will not enable one in an action of right to avail himself of the statute of limitations; Clagett v. Conlee, 16 la. 487; Jasperson v. Scharnikow, 150 Fed. 571, 80 C. C. A.. 373, 15 L. R. A. (N. S.) 1178; Jackson v. Huntington, 5 Pet. (U. S.) 402, 8 L. Ed. 170; Stevens v. Brooks, 24 Wis. 329; Harvey v. Tyler, 2 Wall. (U. S.) 328, 17 L. Ed. S71. The terms "color of title" and "claim of title" are not synonymous; Herbert v. Hanrick, 16 Ala. 581. To constitute the former there must be a paper title, but the latter may rest wholly in parol; Hamilton v. Wright, 30 la. 4S0. The claim of right may be made inferentially by unequivocal acts of ownership; Barnes v. Light, 116 N. Y. 34, 22 N. E. 441; Wilbur v. R. Co., 116 la. 65, 89 N. W. 101; as by the occupation and use of land by a railroad for a right of way; Illinois Cent. R. Co. v. Houghton, 126 111. 235, 18 N. E. 301, 1 L. R. A. 213, 9 Am. Cox v. Hotel Co. (Tex.) 47 S. W. 808. It need not be a valid claim, so long as it is made and relied on by the person in possession; Jackson v. Ellis, 13 Johns. (N. Y.) 118; Clapp v. Bromagham, 9 Cow. (N. Y.) 530; Grant v. Fowler, 39 N. H. 101; Cornelius v. Giberson, 25 N. J. L. 1; Montgomery County v. Severson, 64 la. 326, 17 N. W. 197, 20 N. W. 458; Virginia Midland R. Co. v. Barbour, 97 Va. 118, 33 S. E. 554; Dothard v. Denson, 72 Ala. 541; and where all the other elements of an adverse possession have concurrently and persistently existed for the statutory time, color of title has been usually held not essential; Moore v. Brownfield, 7 Wash. 23, 34 Pac. 199; Dibble v. Land Co., 103 U. S. 63, 16 Sup. Ct. 939, 41 L. Ed. 72; and see the cases collected on this point, 15 L. R. A. (N. S.) 1178, n. The intention must be manifest; Lewis v. Railroad Co., 162 N. Y. 202, 56 N. E. 540; Haney v. Breeden, 100 Va. 781, 42 S. E. 916; Marcy v. Marcy, 6 Mete. (Mass.) 360. It guides the entry and fixes its character; Jasperson v. Scharnikow, 150 Fed. 571, 80

The actual, open, and notorious possession and enjoyment of reni property, or of any estate lying in grant, continued for a certam length of time, held adversely and in denial and opposition to the title of another claimant, or under circumstances which indicate an assertion or color of right or title on the part of the person maintaining it, as against another person who is out of possession. Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Taylor v. Philippi, 35 W. Va. 554, 14 S. E. 130; Pickett v. Pope, 74 Ala. 122; Martin v. Maine Cent. R. Co.., 83 Me. i00, 21 Atl. 740; Dixon v. Co.ok, 47 Miss. 220.

Defined under Possession in Black's Law Dictionary.

The possession and enjoyment of real property, or of any estate lying in grant, continued for a certain length of time, held adversely and in denial and opposition to the title of another claimant, or under circumstances which indicate an assertion or color. of right or title on the part of the person maintaining it, as against another person who is out of possession.

In the law of titles. The possession of lands for a certain length of time adversely, or in opposition to the title of another; the possession of a person claiming under a title, or under color of a title adverse to, or inconsistent with that of another claimant who is out of possession.* To make a possession adverse, so as to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, it must be an actual, continued, visible, notorious, distinct and hostile pos< session. Duncan, J., 6 Serg. d: Rawle, 21 2 Smith's Lead. Cos. (Am. ed.) 416, note. A possession, to be adverse, must be incon< sistent with the title of the claimant who is out of possession; it must be accompanied with a claim of title, exclusive of the rights of all others, and must be definite, notorious and continued for the period of twenty years. 24 Wendell's R. 587. See 1 Burr. 00 2 Smith's Lead. Cos. 396. 2 Joe. d: Walk 1, 189, 140. 8 Cranch JR. 462. 1 Whemton^sR 59, 5 Peters' B. 4^02. derhe'aN.Y, Digetty Adverse possession. Adversary is used for adverse, by Marshall, C. J., 8 CVancA, 462, and Story, J., 7 trheat<m,59.

ttéle to lands, is the enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that assertion of right on the part of the possessor. 3 East, R. 394; Ll Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; when the possession has been adverse for twenty years, of which the jury are to judge from the circumstances, the law raises the presumption of a grant. Ang. on Wat. Courses, 80, et seq.