1810; from which time, by himself and tenants, the plaintiff continued his possession till the commencement of the present suit in September, 1829, making a period of nineteen years. Such was the possession he proved. On the other hand it appeared that the defendant's dam occasioned water to stand on the low parts of the said lot, both before and at the time the sheriff delivered possession to the plaintiff, and has occasioned it to do the same ever since; and in this way the defendant had possession as much as the plaintiff, during those nineteen years, as his counsel insisted. The Court, in charging the jury, instructed them that an actual possession must be shown by the plaintiff to maintain this action, and as he had not made that out, the jury might reject his possession altogether. This direction, I conceive, was erroneous; it supposes the sheriff not to have delivered actual possession of that part of the lot on which the water was standing; whereas I consider it an actual possession that was delivered and that the water did not prevent its being so. The judgment in ejectment must certainly be executed; and if this was not actual possession, on account of water being on the land, it would be impossible, in such a case, to execute a judgment, and the law would have to be acknowledged impotent. The sheriff was not bound to drain the land. To do that deed, he must have entered on the defendant's land and prostrated his dam. He, therefore, gave to the plaintiff the actual possession of the premises, the land and the water both. An idea seems to be entertained, that if the defendant overflowed the freehold of an owner higher up the stream, it gave him possession of the land he so overflowed, and ousted the owner. But if this can be construed an ouster, it follows that an ejectment may lie for overflowing land; which is not only unheard of, but would be without effect even after a judgment. All he could recover would be the land with the water on it; the injury would still be unredressed. So far from being any ouster, it is not even a trespass, to flow the land of another with water by erecting a dam below his land; for the act, in itself, is lawful. Every man may build a dam, by common right, on his own land; and trespass never lies when the act is lawful in itself, and injurious only in its consequences. A man who fixes a spout to carry the water away from his house, performs a lawful act on his own premises; but if it shed the water upon the roof of his neighbor's house, or into his yard, he must be answerable for the injurious consequences in an action on the case, but an action of trespass will not lie against him. Reynolds v. Clark, Stra. 634. It is, therefore, no dispossession, no ouster, nor even a trespass, to flow water backwards on another person's land; it is denominated in law a nuisance, an annoyance to the tenant in possession; and his only modern remedy is, by an action on the case, founded on his posession, It is not in the nature of a nuisance ever to work a dispossession of the tenant, if it be the consequence of a lawful act; as if one erect a smelting house, or a stye, on his own land, so near to another man's house as that it incommodes his dwelling by the gas of the former, or nauseous smell of the latter, the annoyance is neither an ouster, or dispossession of the owner, nor will an ejectment, or trespass, lie for the injury; it is a nuisance the remedy for which is only by an action on the case. 3 Bl. Com. 220. If such a nuisance, whether by smelting house, hog stye, or raising back water, has been continued in the same manner, peaceably and without interruption, twenty years, it thereby ripens into a right, and then it takes, in law, the name of an easement, but even an easement works no dispossession of the owner; the possession still remains in him as much as if the easement did not exist. Thus if the public have a high way over any man's land, or if an individual have a private way over it, such easements of theirs impair not the owner's possession; he may maintain trespass for digging the soil of such high way, or even private way, which shows the possession is his as much as if such easements were not in existence. Therefore whether it be a nuisance or easement, it does not impair the possession of the owner of the land; he remains as entirely in the actual possession as if such nuisance or easement were not in being. Of consequence the direction given to the jury was evidently a mistake. The sheriff delivered to the plaintiff actual possession of the whole premises mentioned in the writ of possession, whether drowned by water or not. If the defendant's dam continued to drown it the nineteen years afterwards, it may have annoyed the plaintiff, but did not diminish his possession. Without touching other points involved in the cause, I am of opinion, on this ground alone, that there ought to be a new trial, and let the costs abide the event of the suit. 282. FOULKE v. BOND COURT OF ERRORS AND APPEALS OF NEW JERSEY. 1879 41 N. J. L. 527 ON error to the Supreme Court. The controversy in this case relates to the equal undivided one-half part of a tract of land in the county of Ocean. The premises in dispute are part of a tract of four hundred and twenty acres, situate in the counties of Ocean and Burlington, and called in the pleadings and evidence as lot number seventeen. . . . This action of ejectment was commenced in July, 1877. The verdict was for the defendant, whereupon the plaintiff after final judgment, sued out this writ of error. For the plaintiff in error, Fred. Voorhees and P. L. Voorhees. I. That the real estate in question is a tract of wild, uncultivated land or sand beach, without enclosure, and without any marked boundaries or lines; that said tract is now owned by the plaintiff on the one part, and the defendant in this suit on the other part, and that the same has been so held in co-tenancy since the year 1851; and that the rules with regard to adverse possession, which govern between co-tenants, apply to the case. For the defendant in error, John L. N. Stratton and B. Gummere. . . II. The general rule is that a grantee of land under a deed giving color of title, and who is, for the term prescribed by the statute, in the actual possession of part of the land conveyed, will be held to be in constructive possession of the residue up to the boundaries set forth in his deed. Angell on Limitations, 400, 401. As modified in this State, actual occupancy of wild lands by enclosure is not required of a vendee claiming under color of title; if he actually occupies part, and exercises such use of the rest as is consistent with the character of the land, his possession is complete - he is not held to the possessionem pedis. Den v. Hunt, Spenc. 487, 492. The defendant has shown, in the fullest manner, his possession of the locus in quo far more fully and continuously than the law requires. . The opinion of the Court was delivered by DEPUE, J. At the trial, sixteen requests to charge were submitted by the plaintiff in error. Exceptions were taken to the refusal to charge in compliance with such requests, and three exceptions were taken specially to the charge as delivered. . The judge refused the plaintiff's request to charge that the lands being unenclosed wild lands, the defendant could not acquire title by adverse possession to any part of the locus in quo, except only such portion as he had actually held enclosed for twenty years. This refusal gave rise to one of the exceptions on the record, as did also his instruction that "the rule of law is that when a man enters into possession of land under a deed, and exercises acts of ownership in different places over the tract, his possession will be presumed to be co-extensive with the boundaries of his deed, and his adverse title, if proven, will run according to those boundaries." It may be regarded as settled in this State by long usage, sanctioned by a uniform course of practice and supported by judicial decision, that mere entry on waste and uncultivated and unenclosed lands under a survey, or a conveyance or other claim of title, and occasional acts of trespass extending over the period of twenty years, though coupled with the payment of taxes, are not such acts of possession as will deprive the true owner of his title. Such acts are evidence of an adverse claim of title, but they do not amount to that actual, continued, and uninterrupted possession which is essential to title by adverse possession, for the reason that they do not amount to such twenty years' notice of an adverse possession as is intended by the statute. 4 Griff. Ann. Reg. 1269; Cornelius v. Giberson, 1 Dutcher, 1. . . . The question whether possession has been held adversely continuously for the period of twenty years, with the requisite notoriety, is one of fact for the jury. Ordinarily, it is said that as a matter of evidence, possession, which is open and visible, is required. But, nevertheless, actual occupancy by residence, cultivation or enclosure, or the erection of permanent improvements is not necessarily required. . . . When the nature and essential qualities of an adverse possession, which shall give title, are explained, the question becomes one of fact, whether, under the circumstances of the particular case, the party relying on title derived from such a source has satisfactorily shown that his possession has been such as to meet the requirements of the law. Occasional acts of trespass, extending over the period of twenty years, will not give title; but who shall define with what frequency they shall be repeated to amount to that continuity of possession which is an essential ingredient of title by adverse possession? The varied circumstances under which the question may be presented in its relations to extensive tracts of wild and uncultivated lands, make the adoption of any legal formula impracticable beyond the enunciation of the rule that possession, to give title, must be hostile to the title of the real owner, and actual, exclusive, continued and uninterrupted for the full period of twenty years, with such notoriety in the adverse enjoyment as that title by that means is being acquired against him. Whether in any case title has been acquired by length of possession, and to what extent, and within what limits must be determined by the actual facts. . . ... The defendant purchased in 1851. When the purchase was made there was upon the Jones parcel a boarding-house capable of accommodating one hundred guests, and on the Pharo lot a dwelling-house. The whole tract is one connected body. It consists of beach lands, sedge meadows, and ridges of sand, with intervals of meadow and pasture land, and patches of land capable of cultivation, and ocean front, over which the tide flows. The defendant entered immediately after his purchase. He enlarged the boarding-house, more than doubling its capacity, made an addition to the dwelling-house, built docks, erected and removed buildings, enclosed gardens, constructed roads and bridges, pastured and cut hay on the meadows, enclosed and cultivated parcels of the lands which were arable, and paid taxes on the whole tract. The evidence fully justifies the remark of the judge that the defendant exercised all the customary acts of ownership over the property, and his possession was uninterrupted after he took possession in 1851. During all that time he claimed to be sole and exclusive owner. He never recognized in any way the ownership of the plaintiff or his grantors, and they made no claim upon him for any part of the premises until this suit was brought. The defendant, as the owner of a legal title to an undivided interest, was presumptively in possession of this whole tract, and the only issue capable of contention was whether his possession was in exclusion or in subordination to the title of his co-tenant, and that question was correctly left to the jury. There is no error apparent on the record, and the judgment should be affirmed. 283. MASSEY v. TRANTHAM SUPREME COURT OF SOUTH CAROLINA. 1802 2 Bay, 421 TRESPASS to try title to an island in the Catawba River, in Lancaster District. Motion to set aside a verdict, and for leave to enter a nonsuit. This action was brought to try the title to a small rocky island in the Catawba River, adjoining an island called Fishing Island, near Rocky Mount, a place celebrated for a shad fishery; the island was good for nothing else; the whole of it was a rock, but a very advantageous place for catching shad-fish in the spring of the year. The plaintiff, in support of his title, produced a grant dated 6th of January, 1794, for fifty acres of land, including part of Fishing Island, and, as was supposed, the place in dispute. One or two witnesses were called, who proved that this place had been called Fishing Island for 20 years past, ́and the part in dispute "Little Island"; that it was a flat rock about forty feet square, or nearly about the size of the court-house here. The plaintiff rested his case upon his grant, and the explanations given by the witnesses. Mr. Richardson, for the defendant, moved the Court for a nonsuit at this stage of the cause, on the ground that the plaintiff had proved no trespass committed on the premises in question, nor that the defendant had ever been upon the rock; and that in this action, it was essentially necessary, that the plaintiff should prove that a trepass of some kind or other was committed by the defendant on the premises, before he could be entitled to a verdict. . . . The presiding Judge (BAY) overruled the motion for the nonsuit, on the ground that he did not conceive it necessary, in the action of trespass, to try titles, to prove any actual trespass where the object of the suit appeared to be to try title only, and not for damages done the freehold, or for mesne profits. That the Act of 1791, appeared to him to have a twofold object in view, first to abolish the old fictitious action of ejectment, and the string of subtilties attached to it; and at once to go on to the trial of the right of freehold, in the real names of the parties claiming the land in dispute. That in all cases, where damages were the object of the suit, an actul trespass must be proved; but where title only was the object, there it was unnecessary. . . . As the first point submitted to the Court was a new one, and turned upon the construction of the Act of Assembly, which had made so material |