I proceed to trace the decisions in our own Courts; referring in the first place to those of some eminent Judges in the United States, where under a similar state of things the matter has received very full consideration.

In Jackson ex dem. Hardenburg v. Shoomaker, 2 Johns. 230, Kent, C. J., delivered the opinion of the Court as follows: "There must be a real and substantial enclosure, an actual occupancy or possessio pedis, which is definite, positive, and notorious, to constitute an adverse possession, when that is the only defence, and to countervail a legal title."

And in the Court of Appeal of Maryland, it was declared that where "one claims by possession alone without shewing any title, he must shew an exclusive possession by enclosure, and his claim cannot extend beyond his enclosure."

To the same effect is a decision of the Supreme Court of the United States reported in 4 Wheaton 223. So in Pennsylvania, one who enters and occupies as a mere trespasser, is confined to the land he encloses and cultivates.

In Weld v. Scott, 12 U. C. R. 537, Robinson, C.J., lays down the law in similar terms. "To allow," he says, "the plaintiff to recover on the evidence given, would be contrary to the legal principle constantly upheld and frequently made the ground of decision in this Court, that a person wrongfully in possession of any land belonging to another which is not covered by any title under which he can assume to hold it, gains no right under such possession to more than the land which his actual possession covers. He is confined to what has been called his pedal possession, and even occasional acts of trespass committed by him on other parts of the property will not be taken as extending his actual peaceable possession over such parts. The distinction between such an occupant and another who either shews a right to the whole land or is residing upon and cultivating part of a lot of land, to the whole of which he claims title under conveyances which, if they were valid, would cover the whole, is, that the latter class of occupants are regarded as being constructively in possession of the whole lot covered by those deeds while they are in possession of part, but a mere trespasser's possession is not to be extended in contemplation of law by any such construction."

That very learned Judge uses similar language in delivering judgment in Doe Rattray v. MacDonnell, 7 U.C.R. 321. If I understand the case of Heyland v. Scott, 19 C.P. 173, which is sometimes referred to as establishing a different rule, I should say that case is not open to the construction not unfrequently placed upon it.

There the defendant claimed under a defective conveyance, and had put a caretaker into possession who was expressly authorized to take charge, and went into possession; and although he did not at first reside upon it, cleared and cultivated a small portion which he never abandoned, and some time before action built a house upon and resided in it, and was known by all the neighbours to have it in charge. It was not the case of a trespasser, but that of a bona fide claimant under a paper title, though a defective one. It is the language of the learned Judge in that case citing a case where apparently no actual possession was taken, in support of his view, which has led to difficulty; his meaning being, as I imagine, misunderstood; but it is not only constantly referred to at the bar, as shewing that exercising acts of ownership over wild lands is alone sufficient to divest the title of the true owner, but is cited for such a position by Mr. Justice Galt in the cases I shall presently mention. He says: "If fencing and cultivation can alone constitute a possession, then title to open wood land can never be acquired against the true owner."

I do not know that that ought to be regarded as an unmitigated evil. There is no reason that I am aware of why a person who has acquired for a valuable consideration land in a state of nature, should be deprived of it, in the manner there suggested when the laws under which he lives declare that unless he has notice that some one else is in actual possession his title shall not be barred, unless he is so utterly regardless of his rights as to make no inquiry as to the possession for 40 years; and with great deference I submit that the proposition that the mere placing of sentries to prevent trespassing upon woodland, if meant to apply to cases in which no visible or actual possession by

clearing or occupation has been taken of any portion of the lot, would deprive the true owner of his rights is not sustainable even though such acts were continued for 100 instead of 20 years.

In the case, then, under consideration, the party was claiming under a deed of the whole lot. He entered and cultivated a portion claiming the whole; and there was abundant evidence for the jury, that in addition to the cultivation of part he claimed possession under his deed of the whole.

In our Courts of Equity, a similar rule has been adopted. The case of McKinnon v. Macdonald, 13 Gr. 152, was a case between vendor and purchaser, who had received possession and paid his purchase money, and it was held to be more reasonable and more in consonance with the authorities that the vendee should be treated as in possession of the whole lot than of the portion in actual occupation, as between him and the vendor.

In Low v. Morrison, 14 Gr. 192, the late learned Chancellor VanKoughnet uses an argument very similar to that I have employed in this judgment. He says, at page 195:

"Moreover, the erection of a mill on the corner of a wild lot of land, would not be a possession of the whole lot. Many a man as a squatter or under pretence of right, has availed himself of the advantages which a stream of water affords for driving machinery, and erected a mill there and worked it; but it does not follow that he is thereby in possession of the adjacent 200 or 400 acres, so as to bar a title to them adverse to the true title? On which side of the mill, for instance, is the vacant wild land to be considered as in his possession? Is he to be treated as occupying 200 acres in front or in rear or both, giving him 400 acres in all ?"

In McMaster v. Morrison, in the same volume, p. 143, Mowat, V. C., says:

'The plaintiff has not shewn that at the early period referred to the testator either had or pretended to have any title to the lot, or that he exercised any acts of ownership on any portion of it except what he cleared; or that he was more than a mere trespasser in respect of

even that portion. Under these circumstances, he cannot, according to the authorities, be held to have been constructively in possession of any part of the lot of which he was not in actual possession.' Citing Hunter v. Farr, 23 U. C. R. 327: Dundas v. Johnston, 24 U. C. R. 547; Young v. Elliott, 25 U. C. R. 330; Turley v. Williamson, 15 C. P. 538.

And the learned Chief Justice of this Court in a case in 15 Grant 237, Wishart v. Cook, held that after the lapse of 40 years there could only be title by possession to so much as was actually cleared and occupied.

I come now to the cases in which this doctrine in reference to mere trespassers has been extended.

In the case of Davis v. Henderson, 29 U. C. R. 344, I do not quarrel in the slightest degree with the decision; it is the generality of the language of one of the Judges in giving that decision to which I take exception, and which has led to what I humbly conceive to be erroneous decisions in more recent cases. That was the case of a person entering under what proved to be a defective title, and treating the whole as in his possession; and my brother Morrison in delivering his judgment is particular in guarding himself against being supposed to hold that a similar result would be arrived at in the case of a mere trespasser.

"I do not think it necessary," he says, "in this case to consider the right of a mere squatter or person whose occupation of land commences without any shadow of right or title to any definite portion or quantity of land. I see a distinction between such occupants and one who goes into possession under a title which is discovered to be defective."

It is the very general language used by the present Chief Justice of the Common Pleas, to which I object, which has been adopted in the case under review, and which, if affirmed as good law has in effect reversed the earlier decisions to which I have referred, which I think are nevertheless sound law founded in justice, 'and on which the owners of wild land have for half a century been led to rely as a rule of property. The language is this, p. 356:

54-VOL. VII A.R.

"In my opinion when any person enters on a lot or half lot, or any defined piece of land, wild or partly cleared and partly wild, under colour of right or otherwise, and holds possession for the statutable period, the question for the jury should always be, as to the wild land, whether the person whose possession is in question has claimed or held the wild land, (for there is no misunderstanding as to the cleared land) as owner, and has used it in like manner as the owners of land who have uncleared and unenclosed portions on the lots they occupy usually use their wild lands, by such acts of ownership as owners are accustomed to exercise, or whether the acts of the person in question have been the acts of a mere trespasser, not done and not intended to have been done in the assertion of right, title, or ownership."

Looking at the whole passage I incline to think that the learned Judge did not intend his language to be understood in the very general sense in which it has been regarded by the profession; it is true he uses the words under colour of right or otherwise; but when he comes to define the question which he thinks the proper one to submit to a jury, he expressly states it to be whether the person claimed it as owner, or whether the acts of such person were mere trespasses, not done and not intended to be done in the assertion of right, title, or ownership, language wholly inapplicable to the case of a person entering as a trespasser without colour of right or title.

As I have said, in the particular case being then decided the party in possession came precisely within the class of persons for whose protection, in my opinion, the Statute of Limitations was passed. A mere squatter, who dishonestly goes upon land of which he knows he is not the owner, upon the chance of defrauding the real owner of his rights, was not certainly intended to be the party benefited by the statute, although he does not unfrequently acquire land in that way as a consequence of the generality of the enactment.

If there be anything contrary to public policy in wild lands being held by proprietors as an investment rather than for settlement, the origin of the evil is to be sought