discovery; the occupancy of the aborigines not being regarded as sufficient to prevent the acquisition of title by discovery. At present, however, there is so small an amount of property which has not a legal owner, that the right of acquiring property by occupancy is of very little consequence. But there are some cases in which this right is even now called into exercise. It is settled, that if soil be formed from the sea or a river, by gradual alluvion, it is the property of the adjacent owner. If an island be formed in a river, it belongs to the owner of the nearest bank; or if the middle line of the river passes through it, the portions on each side of this line belong to the respective owners of the adjacent banks. Again, with regard to the use of air, water, and light, as connected with the ownership of land, great weight is always given, as we have seen, to prior occupancy. The doctrine is, that he who has made the first appropriation of either of these elements to a particular use, is entitled to protection in the enjoyment of that use; but this doctrine is modified by so many considerations growing out of the increase of population and public policy, that it is difficult to lay down any precise rules on the subject. The above cases suppose the ownership to be vacant, and the right originates in the law of nature. But we have two important statutes, the effect of which is to enable persons to acquire title by occupancy, where the ownership was not vacant when the possession was taken. These are the statute of limitations, and the statute of occupying claimants.

Effect of the Statute of Limitations. (a) This statute, which will be considered more particularly hereafter, provides, in substance,

(a) In Ludlow v. McBride, 3 Ohio, 240, the court say, "The doctrine is now too well settled to be disturbed, that a prior possession is presumptive evidence of title, and, unexplained or uncontradicted, is a sufficient title to recover upon in ejectment against a mere intruder. The authorities upon this point are numerous and decisive, both in the English and American courts. It is not necessary that there should be a continued possession for twenty years to furnish this presumption of right. Such possession, when both adverse to all others, and continued, rises at length to a right even against the legal owner of the fee, if once within the protection of the statute of limitations. And when continued less than twenty years, may prevail as a presumptive right until rebutted by proof of prior possession, right of succession, legal title, or other evidence sufficient to defeat such presumption. In cases where no other evidence of title than possession, is given by either party, the prior possession must prevail, especially, when connected with an assertion of ownership, unless such prior possession has been abandoned, or the subsequent possession has been continued until protected by the lapse of time and the statute of limitations." And this is true where the pos session commenced without color of title. Paine v. Skinner, 8 Ohio, 159. In some of the States, persons are protected in the possession of real estate, who have been in possession in good faith and under color of title, and paid the taxes for seven years, or who have been in open and notorious possession under a conveyance purporting to convey a fee-simple, or under judicial sales, or sales for taxes. Wright v. Mattison, 18 How. 50; Lea v. Polk County Copper Co. 21 id. 493; Scott v. Hickox, 7 Ohio State, 88. The original possession must have been taken under the judicial sale, or the statute will not apply. Courser v. Mefford, 11 Ohio State, 575. Title by prescrip tion may be acquired by twenty-one years' adverse enjoyment of an easement, and the period begins to run from the time the right of action accrues. Tooth v. Clifton, 22 Ohio State, 247. The possession need not be all by one person; and if successive transfers were in fact made, it matters not whether they were by instruments sufficient to convey a title or not. McNeely v. Laugan, 22 Ohio State, 32. Actual notorious possession for twenty-one years makes a perfect title, though it was by mutual mistake of the parties. Yetzer v. Thoman, 17 Ohio State, 130.

that no action of ejectment, or any other action for the recovery of the title or possession of real estate, shall be maintained after twenty-one years from the time the cause of such action accrued, unless the person entitled to such action was at that time under one of the four disabilities of infancy, coverture, insanity, or imprisonment; in which case, the action may be maintained, after the twenty-one years have elapsed, so that it be within ten years after the removal of such disability. The object of this statute is to discourage negligence in the assertion of claims, and prevent the raking up of dormant titles; and the consequence of its enactment is, that if any person has been in exclusive adverse possession of land for the space of twenty-one years, or the additional ten years allowed in case of disability, although he has no shadow of title at first, yet by the mere effect of occupancy for this length of time, his title has become impregnable. But this occupancy must be what is termed adverse; that is, one which disclaims the title of the negligent owner; for if it be in subordination thereto, the limitation of the statute does not apply. The question of adverse possession (a) is a question of fact for the jury under the instruction of the court. It must be exclusive of any other right; but it need not be under claim of a rightful title. And there are four classes of cases, where the possession of another is not adverse to that of the owner. 1. Where both parties claim under the same title, as by the same descent, devise, or conveyance, the possession of the one is not, of itself, adverse to the other, but requires some positive act or declaration to make it so. 2. Where the possession of one party is consistent with the title of the other, it is not, of itself, adverse, but requires other circumstances to make it so; as where a grantor remains in possession after conveyance, or where the beneficiary is in possession instead of the trustee, or the mortgagor after executing the mortgage, in all these cases the presumption is against adverse possession. 3. Where the other party has never, in contemplation of law, been out of possession, the actual possession is not of itself adverse. Thus a tenant for years, at will, or at sufferance, does not, unless by some positive demonstration, hold adversely to his landlord; and the possession of one tenant in common, unless there be an actual ouster, is the possession of all. 4. Where the possessor has once acknowledged the title of the other party, as by offering to purchase, paying rent, requesting a lease, and the like, the possession is not adverse; nor can it be rendered so by a subsequent denial; and this doctrine of acknowledgment extends even to the predecessors of him in possession. With these explanations, it may be laid down as a general rule, that where neither party can show any other than a possessory title, the prior possession, however short, is the better one, unless the defendant has been in possession so long as to be protected by the statute of

(a) Adams on Ejectment, 50-7; Abram v. Will, 6 Ohio, 164; Payne v. Skinner, 8 id. 298; Wallace v. Miner, 6 id. 366, 7 id. 249; Ludlow v. M'Bride, 3 id. 240; Ludlow v. Barr, 3 id. 388; Starke v. Smith, 5 id. 455.

limitations; but against a regular paper title no possession short of the statute will avail, this being the term fixed for the presumption of title; and then the presumption is so conclusive that a person out of possession may recover upon a prior possession, for the period of the statute, against a regular paper title with possession for a less period. But it is held that possession of government land before a patent has been issued, even for twenty-five years, is not protected by the statute, because the statute does not run against the government.

Effect of the Statute of Occupying Claimants. (a) This statute is intended to benefit those persons only, who have taken possession of land supposing they had an undoubted title; and in this confidence have made valuable improvements, which, by the common law, they would utterly lose, on being evicted by a superior title; accordingly, those persons called squatters, that is, mere intruders, occupying without claim of title, are not within its provisions. The act enumerates five classes of occupants, whom it protects : namely, first, those who can show a plain and connected title either in law or equity, derived from the records of some public office; secondly, those who claim by descent, devise, deed, or title bond, under the foregoing; thirdly, those who claim under a sale. on execution against either of the foregoing; fourthly, those who

(a) The subject of an occupying claimant law, in all its bearings, is very fully discussed in Greene v. Biddle, 8 Wheat. 1. See 2 Parsons on Contracts, 495, 496; Rawle on Covenants for Title, 263-72. The costs of the proceeding are recovered by the party who prevails in the application. Martin's Case, 1 Ohio, 156. The claim may embrace improvements made before the occupant's title commenced. Shaler v. Magin, 2 Ohio, 235; Davis v. Powell, 13 id. 308. No personal judgment for the value of the improvements can be rendered against the true owner; and if the owner obtains possession without resorting to an action at law, he is not liable for the improvements. Webster r. Stewart, 6 Clarke (Iowa), 401; Dungan v. Von Puhl, 8 id. 263. A purchaser at a void administrator's sale, cannot obtain compensation in equity for taxes and improvements paid for before eviction by the heir. Winthrop v. Huntington, 3 Ohio, 327. But see Nowler v. Coit, 1 Ohio, 519. A purchaser at sheriff's or administrator's sale is within the act. Sellers v. Corwin, 5 Ohio, 398, and Longworth v. Wolfington, 6 id. 9. That the valuers are three, instead of twelve, is no objection to the constitutionality of the law. Hunt v. M'Mahan, 5 Ohio, 133; also, Bank of Hamilton v. Dudley, 2 Peters, 492. In relation to school lands, the office of the township trustees is a public office within the meaning of the law. Hart v. Johnson, 6 Ohio, 87, 538. A purchaser from a judgment debtor after execution levied, when evicted by the creditor, cannot have the benefit of the act. Vincent v. Goddard, 7 Ohio, pt. 2, 188. The valuation is invalid, without reasonable notice to the adverse party. Patterson v. Prather, 11 Ohio, 35. Where the defendant fails in ejectment because of error in boundary, he cannot claim under the act. Waldrons v. Woodcock, 15 Ohio, 13. Where possession was taken in good faith of the wrong land, the statute does not apply. King v. Potter, 18 Mich. 134. Nor where the improvements were made under a mistake as to the quality and duration of the estate taken under a certain instrument, through which title is traced. Taylor v. Foster's Adm'r, 22 Ohio State, 255. Where plaintiff elects to convey, after valuation, and tenders the warranty deed of the person to whom he had sold pending suit, this is sufficient; but he cannot claim interest since the judg ment. Wilkins v. Huse, 15 Ohio, 285. The holder of a tax title is entitled to the benefit of this law. Neiswanger v. Gwynne, 13 Ohio, 74. And see Stewart v. Parish, 6 Ohio, 476. Robinson v. Fife, 3 Ohio State, 551. A mere notice of the claim

which is afterwards successfully asserted, is not conclusive evidence of fraud and collusion on the part of the purchaser. Harrison v. Castner, 11 Ohio State, 337. The Kansas statute is copied from the Ohio one, and construed in the same manner. Stebbins v. Guthrie, 4 Kan. 353.

claim under a regular tax sale; fifthly, those who claim under a regular sale by executors, administrators, guardians, or other persons, by order of court. If a person of either of these descriptions has occupied land without fraud or collusion, he cannot be evicted by any claimant having a superior title, until he has been fully paid for all lasting and valuable improvements, made previous to the commencement of the suit, unless he refuse to pay the claimant the value of the land without the improvements. The act proceeds upon the plain equitable ground that the improvements honestly made ought in fairness to belong to the occupant, and the land itself to the claimant. But as they cannot be separated, and one must take both, the party taking both must pay the other the fair value of his share. The mode of ascertaining the respective claims is as follows: The title is first tried by the regular action of ejectment, and judgment goes against the occupant, who thereupon claims the benefit of this act. A jury is then impanelled to ascertain, first, the naked value of the land at the time of the judgment; secondly, the value of improvements made before suit; thirdly, the rents and profits; and fourthly, the damages done to the land by any species of waste. These rents and profits, together with damages, are of course to be subtracted from the value of the improvements, or vice versa. If the balance be in favor of the claimant, then, as nothing is due the occupant, the claimant has judgment for the land and for such balance. But if the balance be in favor of the occupant, then the claimant has his option, either to take the assessed value of the land and release to the occupant, or pay the assessed balance for the improvements and take the land. (a) It would be difficult to conceive of a set of provisions more perfectly equitable and just. The principle of the common law, which gave all improvements in the nature of fixtures to the successful claimant, was always productive of hardship, but peculiarly so, in a new country, where the settlers are proverbially improvident respecting the security of their title. The present statute was enacted in 1831, and differs considerably from that of 1820. Under the latter, the valuation, instead of being made by a jury of twelve, as at present, was made by three commissioners; and it was objected that on this account the act was unconstitutional, being in contravention of the provision that the right of trial by jury should be inviolate; but the court held that even in this form the law was constitutional, no particular number being necessary to constitute a jury. At all events, the present statute silences this objection. It has also been decided that under this act, it makes no difference whether the improvements were made before or after the occupant's supposed title commenced. Neither

(a) The Act of March 22, 1849, which gives to the occupying claimant, after judgment rendered against him, the option to require of the true owner the full value of his permanent improvements, or to take the land by paying the owner the value thereof, without the improvements, has been declared unconstitutional. McCoy v. Grandy, 3 Ohio State, 463.

the words nor the reason of the act restrict its operation to subsequent improvements. It is sufficient, if at the time of the action he can show such a supposed good title as the act requires. The words of the act are, that the occupant "shall be paid the value of all lasting and valuable improvements, made on said land by such occupying claimant," or those under whom he claims, prior to the commencement of the suit.

§ 156. Personalty acquired by Occupancy. (a) It is more easy to acquire personalty by occupancy, than realty, on account of possession being stronger evidence of ownership. It is a general rule, as will be shown hereafter, that the ownership of realty must be evidenced not only by writing, but by record; whereas personalty does not usually require even written evidence of ownership. The consequence is, that personalty is more frequently acquired by occupancy than realty. The most common instances are as follows: 1. The finder of things lost is entitled to them, unless the original owner appears to claim them; and still more, if there be no such owner. (b) We have a statute respecting stray animals and boats adrift, requiring the finders to have the things found appraised, and to advertise the fact of finding; and if the owner does not appear within one year and pay charges, the property vests in the finder. 2. The captor of wild animals, including all, on land or water, which have not been tamed or domesticated, is entitled to them, provided that in taking them, he does not trespass on the rights of others. 3. Emblements, which have been already described, are acquired by occupancy. 4. The increase of value by accession, is referred to this head. The general rule is, that if a thing in the possession of another receive an accession of quantity or value by natural or artificial means, as by the growth of vegetables, the pregnancy of animals, or the application of mechanical labor and skill, such increase belongs to the possessor. (c) 5. The acquisition of value by invention, discovery, or authorship, in art, science, or literature, comes likewise under this head. But enough has been said on this topic, when speaking of copyrights and patent-rights. (d) 6. In case of the confusion of goods, the rule is, that if goods belonging to different persons be mixed or confounded together by mutual consent, the owners have a proportionable interest therein; but if done by one without consent of the other, the latter has the whole. (e) 7. The capture of an enemy's goods in time of

(a) 2 Kent, Com. lec. 36; 2 Black. Com. ch. 26.

(b) 2 Kent, Com. 356; Bridges v Hawkesworth, 7 Eng. Law & Eq. 424; McGoon v. Ankeny, 11 Ill. 558. See Forster v. Juniata Bridge Co. 16 Penn. State, 393. (c) Pulcifer v. Page, 32 Maine, 404.

(d) See generally on this subject, and particularly the rights of foreigners to copyright, the recent learned and elaborate opinions in the House of Lords, in the case of Jeffreys . Boosey, 30 Eng. Law & Eq. 1-105. To these may be added trademarks and trade names, - for which see note p. 159.

(e) But a party does not lose his property by an intermixture, unless it is caused by his wilful or unlawful act, and the property of each cannot be distinguished. Smith v. Sanborn, 6 Gray, 134; Willard v. Rice, 11 Met. 473; Pratt v. Bryant, 20 Vt. 333; Beach v. Schmultz. 20 Ill. 185; Low v. Martin, 18 id. 286; see Inglebright v. Hammond, 19 Ohio, 337.