present. The adverse possessor whose land is taken loses, as between himself and the State, not the mere expectancy of a property right, but one already in existence, for which logically he should have full recompense at once.

278. WELLS, J., in School District No. 4 in Winthrop v. Benson. (1850. 31 Me. 381, at 384.) If the plaintiffs have held the premises by a continued disseizin for twenty years, the right of entry by the defendants is taken away, and any action by them to recover the same, is barred by limitations. Stat. c. 147, 1. A legal title is equally valid when once acquired, whether it be by a disseizin or by deed; it vests the fee simple, although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseizin any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof, and a continued disseizin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence.

An open, notorious, exclusive and adverse possession for twenty years, would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed.

279. STORY, J., in Clarke v. Courtney. (1831. 5 Pet. 319, at 353.) It may be proper to advert to the doctrine which has been already established in respect to the nature and extent of the rights growing out of adverse possession. Whether an entry upon land, to which the party has no title, and claims no title, be a mere naked trespass, or be an ouster or disseisin of the true owner, previously in possession of the land, is a matter of fact, depending upon the nature of the acts done, and the intent of the party so entering. The law will not presume an ouster, without some proof; and though a mere trespasser cannot qualify his own wrong, and the owner may, for the sake of the remedy, elect to consider himself disseised, yet the latter is not bound to consider a mere act of trespass to be a disseisin. If a mere trespasser, without any claim or pretence of title, enters into land, and holds the same adversely to the title of the true owner, it is an ouster or disseisin of the latter. But in such case, the possession of the trespasser is bounded by his actual occupancy; and, consequently, the true owner is not disseised, except as to the portion so occupied. But where a person enters into land, under a deed or title, his possession is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised, to the extent of the boundaries of such deed or title.

280.

FRENCH v. PEARCE

SUPREME COURT OF ERRORS OF CONNECTICUT. 1831

8 Conn. 439

THIS was an action of trespass quare clausum fregit; tried at Litchfield, February term, 1831, before WILLIAMS, J.

The plaintiff and defendant were adjoining proprietors of land; and the land in controversy was the border between them, which was wood

land, unfenced. Both parties claimed under William French, the father of the plaintiff and of the defendant's wife. The plaintiff's title was admitted, unless the land was conveyed to the defendant's wife, by a deed dated the 11th of May, 1809; in which the line on the side adjoining the plaintiff was particularly described. A part of the description was "from a butternut tree a straight line to Platt's corner said piece being the same land which the grantor bought of Rev. Mr. Benedict." The defendant contended, that as the deed to his referred to the land purchased of Mr. Benedict, he might shew where were the bounds of the lot; and claimed, that by those bounds, there was not a straight line from the butternut tree to Platt's corner. This was accompanied with evidence, by which he claimed to have shewn, that he had occupied and possesed the land in question for more than fifteen years, although not included in the straight line mentioned in the deed. The plaintiff denied the occupation of the defendant; and denied also any difference in bounds in consequence of the reference to Mr. Benedict's deed, and any adverse possession by the defendant.

The judge charged the jury, that in considering where were the boundaries of this lot of the defendant's wife, if the description in the deed was doubtful, they might take into consideration the possession or occupation of the defendant, for the purpose of determining those bounds. But if they should find, that the defendant has possessed the land in question, for more than fifteen years, claiming and intending only to occupy to the true line, as described in his deed and no further then his possession must be referred to his deed, and it would not be adverse to the plaintiff; and the jury notwithstanding such possession, must look to the deed, to determine the line of division.

The jury returned a verdict for the plaintiff; and the defendant moved for a new trial for a misdirection.

J. W. Huntington and J. Strong, in support of the motion. . . . The charge makes a distinction in the occupancy of land, founded on the intent of the occupant, and virtually repeals the statute, in all cases except where the occupant commences his possession by wilful trespass and continues it by intentional wrong.

Bacon, contra. . . . To acquire a title by possession, that possession must be adverse. But land held by mistake, through ignorance of the dividing line, is not held adversely. Such a possession does not operate a disseisin. Brown v. Gay, 3 Greenl. 126. To constitute an adverse possession, it must be under a claim of title hostile to the real owner. 1 Swift's Dig. 163. Does a man, who encloses the land of another, through a mistaken apprehension of the dividing line, and not with a view to encroach upon the land of another, or to enjoy what is not his own, evince any hostility to the rights of the owner?

HOSMER, Ch. J. Whether the line of occupancy was the dividing line between the parties, was the point of controversy between them..

By adverse possession is meant a possession hostile to the title of

another; or, in other words, a disseisin of the premises; and by disseisin is understood an unwarrantable entry, putting the true owner out of his seisin. Co. Litt. 153. b. 181.

The enquiry, then, is precisely this, what must be the character of the act, which constitutes an adverse possession?

This question was directly answered, in Bryan v. Atwater, 5 Day, 181, and by this Court. A clear and unquestionable rule was intended to be given. The Court commenced the expression of their opinion by saying:

"It will be necessary to ascertain precisely the meaning of the terms, adverse holding or adverse possession."

The first principle asserted in that case is, that to render a possession adverse, it is not necessary that it should be accompanied with a claim of title and with the denial of the opposing title. The case next affirms that possession is never adverse, if it be under the legal proprietor and derived from him. After these preliminaries, it is enquired:

"But more particularly, what, in point of law, is an adverse possession? It is," say the Court, "a possession, not under the legal proprietor, but entered into without his consent, either directly or indirectly given. It is a possession, by which he is disscised and ousted of the lands so possessed."

I have been thus particular in analyzing this case, in which the reasons were drawn up by a very able and eminent jurist; as it presents, in the plainest language, a sure and most intelligible land-mark, to ascertain when a possession is adverse. It is peculiarly observable, that by the reasons given, anxiously laboured as they were, it was intended to put the question at rest for the future. The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no enquiry is made. It is for this obvious reason: that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.

It is not necessary that I should proceed further, as the point of decision, in the case before us, has been settled by this Court, and with great precision. At the same time, it may be the more satisfactory to shew, that the determination here is in harmony with the decisions. of other Courts.

In Westminster Hall, the character of an adverse possession is well established. The possession of a person denying the title of the owner, or claiming the premises, or taking the whole rents and profits without accounting, is held sufficient evidence of actual ouster. Doe d. Fisher

& al. v. Prosser, Cowp. 217. Doe d. Hellings & ux. v. Bird, 11 East, 49. Stocker v. Berny, 1 Ld. Raym. 741. s. c. by the name of Stokes v. Berry, 2 Salk. 421. . .

In the State of New York, the entering on land under pretence of title, or under a claim hostile to the title of the true owner, constitutes an adverse possession. Brandt d. Walton v. Ogden, 1 Johns. Rep. 156. Jackson d. Griswold v. Bard, 5 Johns. Rep. 230. Jackson d. Bonnel & al. v. Sharp, 9 Johns. Rep. 162.

To the same effect is the law of Massachusetts.

"To constitute an actual ouster," said Parsons, Ch. J., "of him who was seized, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession."

Kennebeck Purchase v. Springer, 4 Mass. Rep. 416, 418. Boston Mill Corporation v. Bulfinch, 6 Mass. Rep. 229. It is obvious, that a person who takes possession, does not the less claim to hold it against him who before was seised, because he conscientiously believes that he has right to possess. .

In the case of Brown v. Gay, 3 Greenl. 126, the question was, whether the tenant was in possession of certain land by disseisin. He owned a lot denominated No. 3, and was in possession of lot No. 4 claiming that it was part of the former lot. He was, therefore, in possession through mistake. This principle was advanced, by the Court, to wit: "If the owner of a parcel of land, through inadvertency or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate a disseisin, so as to prevent the true owner from conveying or passing the same by deed."

If the learned Court meant to lay down the position, that although the possession was adverse and a disseisin, yet that it was of such a character as not to prevent the owner from transferring the land by deed, the case has no bearing on the one before us. But if it was intended to declare, that there was no disseisin at all, by reason of the before mentioned mistake, I cannot accede to the proposition. . . . I agree with the learned Court, that the intention of the possessor to claim adversely, is an essential ingredient. But the person who enters on land believing and claiming it to be his own, does thus enter and possess. The very nature of the act is an assertion of his own title, and the denial of the title of all others. It matters not, that the possessor was mistaken, and had he been better informed, would not have entered on the land. This bears on another subject the moral nature of the action; but it does not point to the enquiry of adverse possession. Of what consequence is it to the person disseised that the disseiser is an honest man? His property is held, by another, under a claim of right: and he is subjected to the same privation, as if the entry were made with full knowledge of its being unjustifiable.

In the case of Ross v. Gould, 5 Greenl. 204, it is said,

"a disseisin cannot be committed by mistake, because the intention of the possessor to claim adversely, is an essential ingredient in disseisin."

I do not admit the principle. It is as certain that a disseisin may be committed by mistake, as that a man may by mistake take possession of land, claiming title and believing it to be his own. The possession is not the the less adverse, because the person possessed intentionally though innocently. But in the moral nature of the act, there is undoubtedly a difference, when the possessor knowingly enters by wrong.

In the case before us, the plaintiff adduced evidence to show, that he entered on the land in question, and possessed it more than fifteen years, uninterruptedly and exclusively, under a claim and belief of right, and appropriating to his own use, without account, all the rents and profits. This was adverse possession and disseisin, and gave him title under the law of the State. Upon this principle, the charge was incorrect, and a new trial is advised.

The other judges were of the same opinion, except PETERS, J., who was absent. New trial to be granted.

THIS was an action on the case for overflowing a part of the plaintiff's land. A verdict had been given for the defendant, and the plaintiff had obtained a rule to show cause why the verdict should not be set aside and a new trial had. The substance of the testimony, and of the charge of the judge, who tried the cause, will be found in the opinions below, in which the Chief Justice concurred.

FORD, J. This was an action on the case for overflowing a part of the plaintiff's land with water by means of a dam that the defendant maintained across a stream of water below the plaintiff's lot. The declaration counted on the plaintiff's possession of a lot of 2.79 acres, and that the defendant caused 1.72 acre thereof to be overflowed. The defendant admitted the overflowing complained of, but denied that the plaintiff had title to the land, or any such possession that he could maintain an action for overflowing it.

The plaintiff gave in evidence a survey and location of the two acres and seventy-nine hundredths in the year 1808, and deduced title under it to himself. Soon after the location, he brought an ejectment against one Valley Cousins, the tenant in possession, and having obtained judgment, and a writ of habere facias possessionem, the sheriff, as appeared by the record and return, put him in full possession, the 29th of October,