#### Taylor’s Devisees v. Burnsides.

September, 1844,

Lewisburg.

(Absent Brooke and Allen,* J.)

1. Writ of Right Entry of Demandants—Evidence.— On the trial of a writ of right, the demandants, as a foundation for proof of an entry made upon the lands in controversy by their agent, offered in evidence, a power of attorney executed by them, and properly authenticated, giving authority over the lands in controversy to their said agent; which was objected to by the tenant. Held, it was proper evidence.

2. Same—Title of Demandants — Evidence—Copy of Will.—in order to trace the title from the original patentee to themselves, the demandants offered as evidence, an office copy of the *will of their testator. The will appears to have three attesting witnesses, who were not examined *74on its probat; but it was admitted to probat in the proper court, upon proof by two other witnesses, that it was wholly written by the testator. Held, the copy was legal evidence.

3. Same—Title to Sustain Recovery.—The demand-ants in a writ of right, claiming title to the land in controversy under a patent from the commonwealth, are entitled to recover the land, though neither they, nor those under whom they claim, have entered, and held actual possession under their grant, in the absence of a sufficient legal defence on the part of the tenant.

4. Same—Plea of Statute of Limitations†—What Tenant Must Show.‡—If the tenant in a writ of right, would protect himself by the plea of the statute of limitations, he must shew that he entered on the land in controversy, claiming the same under his junior grant, when the demandants had not actual possession thereof, under their elder patent; and took, and held actual possession thereof by residence, improvement, cultivation, or other open, notorious and habitual acts of ownership; and so continued the same, under his said claim, for more than twenty-five years before the commencement of the demandants’ suit.

*755. Adverse Possession—Must Be Continuous.!—If the tenant, or those under -whom he claims, have abandoned their possession within the 25 years, the statute of limitations is no bar to the demand-ants’ title under his elder patent.

*6.*Same—Entry by True Owner—Effect.—The tenant cannot sustain his defence of continued adversary possession, so as to make the statute a bar, if the demandants, or those under whom they claim, have within the period of 25 years before bringing the action, entered upon the land in controversy, and taken actual possession thereof, by residence, improvement, cultivation, or other open, notorious, and habitual acts of ownership.

7. Same—Interlock ¡—Senior Grantee’s Constructive Possession Cannot Prevail over Junior’s Actual Possession.—The entry of the demandant, or those under whom he claims upon and possession of the land within his elder grant, not embraced by the junior grant of the tenant, cannot oust the tenant, if at the time of the entry of the demandant, the tenant had actual possession of the land embraced by his grant.

8. Same— *Same.—Qucere.*If, in this last case, the possession of the tenant is limited, by the entry and possession of the demandant, to his close, or if it extends to the boundaries of his patent ?

In the year 1833, Thomas O. Taylor brought a writ of right against John Burn-sides, in the circuit superior court of law and chancery for the county of Bewis. The count demanded two tenements, one containing 2560, and the other, 1280 acres of land. The plea of *the tenant defended the title of only four hundred acres of the land claimed by the demand-ant, and disclaimed title to the residue. This four hundred acres was the subject of controversy in this suit.

The demandant claimed title under two patents issued by the commonwealth of Virginia to his father Thomas A. Taylor, the one for 2560 acres, bearing date the 18th of June 1786; the other for 1280 acres bearing the same date. The two tracts adjoined each other, and embraced, within their limits, the whole of the four hundred acres claimed by the tenant. The demandant’s title was derived by descent from his father, who died intestate.

The tenant claimed title under a patent from the commonwealth to Thomas Baton, dated the 20th June 1792, and deduced by deed from Thomas Baton to John Collins, bearing date the 12th of December 1792, and from Collins and wife to the tenant, dated the 11th of September 1815.

After the mise had been joined, putting in issue the right to this four hundred acres *76of land, the demandant died, leaving a will which was admitted to probat in the county court of Powhatan ; the county of his residence at the time of his death. It appeared that although there were three attesting witnesses to this will, they were not examined before the court of probat; but it was admitted to probat on the evidence of two other persons who testified that the will was wholly in the hand-writing of the testator. By this will, Thomas O. Taylor devised the residue of his estate, both real and personal, of which the two tracts above mentioned were a part, to Holden Rhodes and Archer L. Wooldridge, and to the survivor of them, and the heirs of the survivor forever; in trust for certain purposes therein mentioned; and the suit was thereupon revived in their names.

*On the trial of the issue, the patents and deeds above mentioned were introduced as evidence; and then the demandants offered in evidence a power of attorney, from Thomas O. Taylor to Henry O. Middleton, giving authority over the lands in question ; which was offered by the demandants, as a foundation for proof of an entry made upon the lands in controversy by Middleton in behalf of the demandant. This power of attorney was authenticated by acknowledgment before two justices of the City of Richmond, and recorded in the county of Lewis. The tenant by his counsel objected to the admission of this paper as evidence, but the court overruled the objection, and the tenant excepted. This was the first exception.

The demandants, in the progress of the trial, offered in evidence an office copy of the will of Thomas O. Taylor, with the proceedings had thereon in the county court of Powhatan; to which the tenant objected, on the ground that the will was admitted to probat by the county court of Powhatan, on illegal testimony ; but the court overruled the objection and admitted the evidence; and the tenant excepted.

It is obvious, from the • record, that the controversy turned chiefly on the statute of limitations; but the parol evidence given on the trial does not appear in the record; and the only written testimony, other than that before stated, are the receipts of the sheriff of the county, and of the first auditor of the state, by which it appears that the tenant had paid the taxes on the land from the year 1815 to 1837.

After the evidence had been submitted, both the tenant and demandants bjr their counsel, moved the court for instructions to the jury. But the court, declining to give the instructions asked for by the tenants, as well as those asked for by the demand-ants, in the terms required by either party, proceeded to give the following instructions, to the jury, to wit:

*“lst. The court instructed the jury, that if they believed from the evidence that the tenant or those under whom he claimed title, entered upon the land in controversy more than twenty-five years prior to the institution of this suit, and took possession thereof, claiming title thereto by virtue of their grant, that such entry and possession was an ouster of the demandants’ seisin under their grants, to the extent of the boundaries of the grant under which such entry was made; and that to enable the demandants to recover in this action, if they rely upon the possession or seisin of the ancestor of their devisor, they must prove an actual entry upon, and taking possession of, the premises by such ancestor subsequent to such ouster, and that he had possession and seisin thereof within twenty-five years prior to the institution of this suit.

“2d Instruction. The court also instructed the jury, that the demandants having the prior grants for the land in coritroversy, (and it not appearing .that the premises had been previously granted to a third person,) such grants conferred upon the grantees legal seisin of the premises; and although the jury should believe from the evidence, that the tenant or those under whom he claims title, had ousted the demandants or those under whom they claim, of their legal seisin under their prior grants, yet if the tenant or those under whom he claims, had abandoned their possession of the premises so acquired at the time of the ouster aforesaid, and the possession thereof became vacant; in that event the legal seisin of the premises in the demandants, was revived by virtue of their older grants, so as to render an actual entry by them upon the premises unnecessary to maintain this action, provided the legal seisin thus regained was within twenty-five years prior to the institution of this suit.

“3d Instruction. The court also in-' structed the jury, that entry by the demandants, or those under whom *they claim, on that part of the lands embraced by their grants which lie outside of the boundaries of the tenant’s grant, did not give seisin of the land covered by the tenant’s grant, if the demand-ants, or those under whom they claim, had been previously ousted of their seisin thereof by the entry and possession of the tenant, or those under whom he claimed title; unless, at the time of such entry by the demand-ants, or those under whom thejT claim, the previous possession taken thereof by the tenant, or those under whom he claims, had been abandoned; but, if there was no such adverse possession of the premises by the tenant, or those under whom he claims, at the time of such entry on the part of the demandants, such entry being upon any portion of the land covered by their grant, gave them seisin to the extent of the boundaries of such grant.

“4th Instruction. The court also instructed the jury that if they believed,from the evidence, that the tenant, or those under whom he claimed title, had ousted the demandants, or those under whom they claim, of their seisin in the premises, more than 25 years prior to the institution of this suit, it is not necessary, *77in order to their continued adverse possession so as to bar the demandants’ recovery, that the tenant should prove an actual and continued occupancy of the premises by himself, or those under whom he claims, or a cultivation of the soil, or the erection of houses or other improvements thereon ; but if the jury believe that the tenant, and those under whom he claims title, did, from the time of such ouster of the demandants’ seisin, continue to exercise open and notorious acts of ownership over the premises, they might infer therefrom a continued adversary possession against the demand-ants ; and that, for the purpose of aiding the jury in determining what should constitute ‘the exercise of such open and notorious act's of ownership,’ amounting to an adversary possession, they should take into consideration such acts of the tenant, and those under whom he claims, as are consistent *with and indicate a notorious claim of the premises, and which from their nature could not have been exercised without such claim; and for this purpose, the facts, if proved to their satisfaction, that the tenant, or those under whom he claims, claimed the title to the premises for more than 25 years prior to the institution of this suit, occasionally visited the land, had it entered upon the tax-books, paid the taxes thereon, prohibited waste and trespasses from being committed on it, sold and permitted timber to be taken off the land, made open sales of the land, took surveyors upon it and openly surveyed it, executed conveyances therefor, and placed them upon the record; these and other acts of the tenant, and those under whom he claims of the same nature, if proved to the jury, became proper for their consideration for the purpose aforesaid.

“5th Instruction. The court also instructed the jury that, in order to entitle the tenant to the benefit of the facts tending to prove the exercise of such ‘open and notorious acts of ownership’ over the premises, as will constitute an adversary possession thereof against the demandants, it is not necessary that there should be proof that the demandants, or those under whom they claim, had a knowledge thereof, if the facts relied upon by the tenant for the purpose of shewing such adversary possession in him, were of such a nature that the demandants, or those under whom they claim title, by the exercise of that care, attention, and vigilance, which it is expected that every prudent man would exercise over his property, might reasonably be expected to have acquired a knowledge thereof.”

-Both the demandants and the tenant excepted to the opinion of the court, refusing the instructions they had moved, and giving those which the court gave.

The jury found a verdict for the tenant, upon which the court gave judgment; and the demandants applied to this court for an appeal, which was allowed.

*The appellants, in their petition for an appeal, insisted that the instructions given by the court were erroneous.

The first instruction is erroneous in this:

1st. That it held a bare entry, and claim of title under a junior patent, upon lands, uncleared, unimproved, unoccupied, to be an ouster to the whole extent of the patent, under which this entry was made, of the legal seisin of the prior patentee.

2d. That it held a subsequent actual entry, on the part of the prior patentee, upon the land in controversy, necessary to re-vest the prior patentee with the legal seisin of the lands.

3d. That it held both possession and seisin within 25 years before the bringing of the suit, essential to maintain the demandants’ action.

The second instruction is erroneous in adding the proviso, which requires that the legal seisin of the demandants should have been regained within 25 years prior to the institution of this suit.

The third instruction is erroneous in this:

' That taken in connection with the first instruction, it holds that an actual entry by the demandants on that part of their patented land which lies without the boundaries of the tenant’s patent, would not revest them with seisin of any part of the land embraced within the boundaries of the tenant’s patent, unless the prior possession acquired by the bare entry and claim of the tenant, had been wholly abandoned.

The fourth instruction is erroneous in this:

'That regarding the land in controversy, (as from the proof it must be regarded,) as uncleared, unimproved, and unoccupied, the criteria of continued adversary possession referred by the court to the consideration of the jury, are wholly insufficient to warrant an inference of such adversary possession.

*The fifth instruction is erroneous in this:

That it leaves the jury uninformed whether knowledge or notice to the demandant of the acts of ownership exercised over the land in controversy by the tenant, were necessary or not, and if necessary, the vague circumstances referred to in the instruction were not sufficient notice to the demandant.

G. H. Bee for the appellees.*

The first error assigned by the appellants, is founded on a misconception of the instruction given by the court. That instruction is founded on the hypothesis that the jury should be satisfied that the tenant, or those under whom he claimed by virtue of the junior grant, entered upon the land and took possession thereof, claiming title by virtue of their grant. It held an entry, and taking possession under claim of title, to consti*78tute the ouster. And this is well warranted by authority. A disseisin is when one enters intending to usurp the possession, and to oust another of his freehold; and therefore quaerendum est a judice, quo animo hoc fecerit. 1 Inst. 153; Blunden v. Baugh, 4 Croke 302.

The fact of possession, and the quo animo with which it is taken, constitute the true test of an adversary possession. Hob. 120. An entry under a void deed or grant, is sufficient to sustain it. Rigeway’s case, 2 Rep. 52; Ba Frombois v. Jackson, 8 Cow. R. 589. And a contract of sale without a deed, may be a good commencement of an adversary possession. Smith v. Borillard, 10 Johns. R. 339; Bradt’s lessee v. Whitbeck, 6 Cow. R. 632.

Actual force is not necessary to constitute a *disseisin ; but a silent entry upon another’s possession, under pretence of right, known to be groundless, or without colour of title, and a holding exclusively for the party so entering, and in defiance of the former possessor, is a disseisin. Clapp v. Bromagham, 9 Cow. R. 530. And an entry under a recorded deed, claiming title to the entirety, and the exercise of acts of ownership over the subject, is a disseisin of all others claiming title to the same land, to the extent of the boundaries of the deed. Prescott v. Nevers &c., 4 Mason’s R. 326; Clarke’s lessee v. Courtney, 5 Peters’s R. 319; Smith v. Frost, 2 Dana’s R. 144; Harrison v. M’Daniel, Id. 348; 4 Bibb’s R. 563. Andas an entry with claim of title, affords a necessary inference as to the quo animo with which the entry is made, so possession with a claim of ownership in fee, is prima facie evidence of such estate, and that the possession is adversary to all the world. 1 Paine’s R. 457; Clarke v. Courtney, 5 Peters’s R. 319; Green v. Liter, 8 Cranch 229; Bradstreet v. Huntington, 5 Peters’s R. 402. For the distinctive features of disseisin, the court is referred to the language of justice Baldwin in delivering the opinion of the court in the case of Ewing’s lessee v. Burnet, 11 Peters’s R. 41.

The error assigned by the appellants in the third instruction of the court, is based upon the misconception of the first branch of the first instruction, already commented on. . The court tells the jury that if those claiming title under the junior grant, had ousted the demandants, or those under whom they claimed, by such an entry, and such a possession as according to the previous instruction amounted to an ouster, to wit, an entry and taking possession under claim of title, by virtue of their grant; and if, after such ouster, those claiming under the junior grant had never abandoned their possession, an entry by those claiming under the senior grant, upon that part of the land covered by it, lying without the boundaries of the junior grant, made subsequent to *the ouster, and pending the possession held under the junior grant, did not give seisin of the land covered by the junior grant; but if there was no such adverse possession a‘t the time of such entry, it did give seisin to the full extent of the senior grant, including the land covered by the other. For authority for the principles contained in this instruction, the court is referred to Green v. Biter, 8 Cranch 229; Clarke’s lessee v. Courtney, 5 Peters’s R. 319; Ellicott v. Pearl, 10 Peters’s R. 412; Smith v. Frost, 2 Dana’s R. 144; Harrison v. M’Daniel, Id., 348; M’Dowell v. Kenney, 3 J. J. Marshall’s R. 516.

The error assigned in the fourth instruction, assumes that the land in controversy was uncleared, unimproved, and unoccupied, and that the court referred to the consideration of the jury certain criteria of continued adversary possession, as sufficient to infer such adversary possession therefrom: whereas the court told the jury that the various circumstances, (which are called criteria of adversary possession in the assignment of errors,) might be properly considered by them, in determining whether there had been the exercise of such open and notorious acts of ownership consistent-with, and indicating a notorious claim of the premises; and which, from their nature, would not have been exercised, without such claim as would amount to an adversary possession.

The court first tells the jury, that if those claiming under the junior grant had ousted those claiming under the senior grant of their seisin, it was not necessary, in order to shew a continued adversary possession, that the former should prove an. actual and continued occupancy of (i. e. residence on) the premises, or a cultivation of the soil, or erection of houses, or other improvements thereon; but that they they might infer a continued adversary possession, from the continued exercise of open and notorious acts of ownership over the premises. Now it "is presumed that the assignment of errors does not intend to raise the question whether land uncleared, uncultivated, unimproved, and unoccupied, can be the subject of an adversary possession. This question has been settled by the courts of Kentucky, and the supreme court of the United States. The. cases shew that it is sufficient to constitute an adversary possession, that visible and notorious acts of ownership are exercised over the premises in controversy, for the period of limitation, after an entry under claim and colour of title. 6 Peters’s R. 498; Ellicott v. Pearl, 10 Peters’s R. 412, 442; Ewing’s lessee v. Burnet, 11 Peters’s R. 41; Moss v. Scott, 2 Dana’s R. 271.

Having thus instructed the jury, the court then tells them that to aid them in determining what would constitute the exercise of such open, and notorious acts of ownership, they should take into consideration such acts as are consistent with, and indicate a notorious claim of the premises; and which from their nature could not have been exercised without such claim; and that they might take into consideration the circumstances referred to in the assignment of *79errors, and there called criteria of adverse possession. The question of adversary possession is to be left to the jury; though the trial of that question may involve questions of law for the court to decide; and in such case the court should submit the question of fact to the jury, with its opinion of the law involved. Clapp v. Bramagham, 9 Cow. R. 530; Jackson v. Joy, 9 John. R. 102. Whether the acts relied on as amounting to public acts of ownership, and as being such as the party would exercise over property which he claimed in his own right, and which he would not exercise over property which he did not claim, were in fact such or not, it was the peculiar province of the jury to determine. Ewing’s lessee v. Burnet, 11 Peters’s R. 41. And for the court to have excluded the facts objected to, would have been to usurp the province *of the jury; and seems directly opposed to the authority in 11 Peters, supra.

The fifth instruction is not obnoxious to the objection made to it. The jury are told that if the acts of ownership relied on by the tenant, are of such a nature that the demandants might reasonably be expected to have acquired a knowledge thereof, in the exercise of a reasonable care and attention, then proof of notice of tenant’s pretensions, was unnecessary; but, if these acts were not of that nature, the jury were to require notice. Of this, they were the exclusive judges. And it is believed that no authority can be found, requiring proof of actual notice in such case, whatever might be the character of the acts of ownership relied on. It is true, in the case of cotenants, a mere silent possession by one, unaccompanied with any act amounting to an ouster, or giving notice to the other that the possession is adverse, would not be construed into an adverse possession; because in such case the possession would not be inconsistent with the right of the other co-tenant. M’Clung v. Ross, 5 Wheat. R. 116. But where there is no privity between the parties, the possession of one should be regarded as full notice to the other.

The object of the common law in requiring seisin, was to evince notoriety of title in the neighbourhood; and the consequent burthen of feudal duties. Green v. Liter, 8 Cranch 226. Such acts of ownership as would evince notoriety of the party’s claim in the neighbourhood, shewing that he regarded the subject as absolutely his own,' assuming complete control over it, and denying the claim of any other or better title, ought to satisfy all the requisites of notice.

C. and G. N. Johnson for the appellants.

There are three errors assigned in the first instruction given. The first, though it does not follow the precise language of the instruction, yet when that instruction is taken in ^Connection with the evidence, which shewed that the land at the time of the entry was in a state of nature, and with the entire absence of all evidence tending to prove there had been any other occupation of the land, or any other possession of it taken, than a mere entry with claim of title, it is obvious that the assignment of error correctly interprets the instruction: and the question is, is this instruction thus understood correct?

It is obvious that uncultivated land in the midst of a forest, so long as it remains in this condition, is not susceptible of any other possession than that which the law ascribes to him who hath the legal title. That possession is given by the patent of the commonwealth, to the elder patentee; and the mere emanation of the patent for a freehold estate, vests the patentee not merely with seisin in law, but seisin in deed of the whole land within the limits of his patent; such a seisin in deed as will sustain a writ of right. Green v. Liter, 8 Cranch 229.

How then, in the nature of things, is such a seisin as this to be divested? Can it possibly be done by a mere entry and claim of title under a junior patent, which gives no right? Will riding through the land, or any other symbolical act, invest the trespasser with possession, and divest the seisin of the legal owner?

If by such acts the wrongdoer could acquire possession, then a fortiori the rightful owner might regain it by similar acts; and while by a transient passage over one corner of a controverted tract, the junior patentee might gain possession to-day, the senior patentee might to-morrow, by a similar passage over an opposite corner, regain that possession, thereby disseising his adversary : and so toties quoties for a long succession of years, each claimant might gain possession, and disseize his adversary, by acts of which his adversary had no notice ; all the while the apparent possession of the land remaining precisely as it was at the moment of the emanation of the elder patent.

*In opposition to the doctrine of the instruction, we say that the act which is necessary to divest the seisin in deed conferred by the elder patent, in reason, and law, can be nothing less than an actual occupancy, an obvious, bona fide, common sense possession of the property; such as would demonstrate the claimant in the language of the learned and the unlearned, the occupant of the land. We do not mean to say that either actual residence on the land, or enclosing, or cultivation, is in all cases necessary: but we do say that with reference to the character of each particular parcel of land, something equivalent to residence, cultivation, or enclosure, something inconsistent with possession in another, is necessary to divest the seisin in deed conferred by the patent.

Littleton § 279, and Coke in his commentary upon the passage, both hold that there must be both an entry and an ouster to constitute disseisin: and the examples, given by Coke, indicate that the ouster must be by some act inconsistent with the seisin of him who was seized at the time *80of the entry. The act must be of a substantial character, and plainly inconsistent with the seisin of another.

The definition of disseisin given by Blackstone is, “a wrongful putting out of him that is seized of the.freehold:” and after speaking of abatement, and intrusion, he says, "The two former species of injury were by a wrongful entry,, where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it: those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin of things corporeal as houses, lands, &c. must be by entry and actual dispossession of the freehold; as if a man enters either by force or by fraud into the house of another, and turns, or at least keeps him or his servants out of possession.” 3 Black. Com. 169, 170.

*Compare these common law illustrations of disseisin, with such an entry and ouster as is set up by the tenant in this case; and what resemblance is to be found between them? no more surely than there is between any common trespass, and the turning a man out of house and home.

Do the American authorities justify the position, that such an entry as we have been supposing, into a tract of forest land, with claim of title under a junior patent, and possession- taken by symbolical acts, will divest the seisin in deed held by the elder patentee? In considering these authorities we shall not confine ourselves to the narrow question of actual disseisin, but shall consider the decisions upon the subject of disseisin, in connection with the bar of the statute of limitations.

We admit that there are several authorities, in which the general doctrine is laid down, that an entry under a junior patent, or invalid deed, claiming title by its boundaries, will oust the senior patentee to the whole extent of these boundaries. But these doctrines are only applicable to entries which are accompanied by actual possession; and where the claimant under the senior patent, was not at the time in the actual possession of any part of the land embraced within his patent. For it is conceded that, if at the time of the entry of the junior patentee, the senior patentee be in the actual possession of any part of the land covered by his patent, whether that part be in the controverted boundary or not, that the disseisin produced by the entry of the junior patentee, does not extend over the whole limits of his patent, but is confined to his pedis positio, or close. These seem to be the principles involved in the cases of Green v. Liter, 8 Cranch 229; Clarke v. Courtney, 5 Peters’s R. 319; Smith v. Frost, 2 Dana’s R. 144; and Harrison v. M’Daniel, Id. 348, cited by Mr. Lee.

There is another class of cases, which bear directly upon the question of disseisin. It is that class which *goes to shew that to constitute the adversary possession which will lay a foundation for the statute of limitations, neither residence, cultivation, or enclosure, is necessary: Of this class are the cases of Ellicott v. Pearl, 10 Peters’s R. 412; and Ewing’s lessee v. Burnet, 11 Peters’s R. 41; of which the last is the strongest. Now the principle of this case extends no farther than this—that one may be made the actual and continued occupant of property, without residing on, enclosing, improving, or cultivating it, by habitually exercising, with the knowledge of the adversary claimant, those acts of ownership which are best suited to its enjoyment: the property being incapable of any other occupation. And this may be admitted to be law, without trenching upon any of the doctrines in controversy here. All we insist upon is, that to put the better title of the senior patentee to a right by disseisin, the possession of the junior patentee must be actual and not constructive, and that no trespass or number of repeated trespasses can constitute such disseisin. And in this position we are sustained by numerous American authorities. Bailey v. Irby, 2 Nott & M’Cord 343; Macarty v. Foucher, 12 Martin’s Rep. 11; Smith v. Mitchell, 1 A. K. Marshall’s Rep. 208; Brandall v. Speed, 1 Marsh. Rep. 105; Trotter v. Cassady, 3 Id. 366; Lillard v. M’Gee, 3 J. J. Marshall’s Rep. 549; Jones v. Ridley, 2 North Car. Law Rep. 400; Miller v. Shaw, 7 Serg. & Rawle 129; Royer v. Benlow, 10 Id. 303.

In New York, Maryland, and North Carolina, it has been settled that one entering upon land without good title, does not acquire possession beyond the part actually occupied or enclosed by him; Jackson dem. Gilliland v. Woodruff, 1 Cow. Rep. 276; Brandt v. Ogden, 1 Johns. Rep. 156; Jackson v. Schoonmaker, 2 Id. 230; Jackson v. Sharp, 9 Id. 162; Jackson v. Waters, 12 Id. 365; Miller v. Dow, 1 Root’s Rep. 412; Gibson v. Martin, 1 Harris & Johns. 545; Pott’s lessee v. Gilbert, *3 Wash. C. C. Rep. 475; Smith v. Morrow, 7 J. J. Marshl. 442.

In considering the question involved in the third instruction, we are to suppose that the possession acquired by the junior patentee was by an actual pedis positio of part, and a claim of title to the whole of the controverted land; and that this possession had so continued up to the time of the entry of the senior patentee. And in like manner to consider that the possession taken by the senior patentee, was by a pedis positio of part of the land without the controverted limit under claim of title to the whole land within the senior grant, and of course to the whole land within the controverted limit. The authorities on this question are doubtless in conflict, but we think that those which sustain us are founded on the stronger reason and better policy.

On the emanation of his patent, the senior patentee had the prior seisin in deed of the whole land; a seisin which could not have been made more perfect by an actual entry. At the time of the entry of the *81junior patentee, he had no seisin—no right. The senior patentee had actual seisin, and perfect right. The entry by the junior patentee is a trespass, a wrong accompanied by legal force, and to remedy which, the law gives-the appropriate action quare clausum fregit. The damages to be recovered in this action, must be for the injury done to that part of the land where the trespass was committed. When then this wrong acquiesced in, is set up as a protection to the wrongdoer, the protection can only be co-extensive with the wrongful act. If the act is considered not merely as a trespass, but a disseisin, the disseizee might surely regard it as co-extensive with the trespass; might bring his action demanding the close, and no more; and by evicting the disseizor from that close, would be invested with possession of the whole. The entry of the junior patentee upon part of the controverted land, is a disseisin, not because the *law -would give any countenance to the act of a wrongdoer, but from necessity. Two persons cannot hold actual possession of the same land at the same time, claiming adversely to each other. When then the junior patentee enters, and takes possession claiming title, ex vi termini, the senior patentee must be out of possession; that is, he must be disseized. The disseisin then being the effect of necessity, it ought not to extend beyond that necessity. There is no necessity for-regarding, a man in possession beyond his close. Whether he is in possession beyond his close, is a question, not of fact, but of law. It is a question to be decided upon that doctrine of the law, which instructs us that possession of part is possession of the whole, as it is qualified by our statute, which tells us that possession of part shall nor be possession of the whole, where there is an actual adversary possession. When the junior patentee entered and took possession of part, there was certainly an adversary possession in the senior patentee, in the whole land. And therefore under the operation of the statute, the possession of the junior patentee can only be considered to extend to the limits of his close.

But if there be any good distinction in law between the seisin in deed given by the patent, and that seisin which is held after an actual entry, when the elder patentee enters upon' his land, and actually holds possession, upon the doctrine that possession of part would be possession of the whole, both the senior and junior patentee would hold to the extent of their boundaries, if thejT did not conflict. But conflicting as they do, the law must assign the limits’to their respective possessions; and this is truly the province of construction. Each having a pedis positio, an actual close, the actual possession of each must be limited by that close, and all beyond must be a constructive possession. If that constructive possession follows the right, it must be with the elder patentee. If it follows priority of time, *it must also be assigned to the elder patentee. There is no principle which would assign it to the junior patentee but priority of wrong, inasmuch as his entry was itself a wrong.

The fourth instruction brings into view the question, what acts are necessary to give the junior patentee, and those claiming under him, a continued adversary possession, sufficient to bar a writ of right; and gives to the jury the power to infer such possession, from acts which not only do not in themselves imply continued adversary possession; but which amount plainly to casual, though repeated acts of trespass. The only authority cited by the counsel for the appellee, which gives any countenance to this instruction, is the case of Ewing’s lessee v. Burnet, 11 Peters’s R. 41; and the instruction is manifestly founded upon it. But, after what we have said upon that case, it cannot be necessary for us to say any thing more to point out the difference between the doctrines there stated, and the doctrines of this fourth instruction.

The court obviously meant to instruct the jury, that they might infer continued adversary possession, from the continued exercise of open and notorious acts of ownership : and then specific acts of ownership are enumerated as proper to be considered in making this inference.

This instruction abandons absolutely, the whole law of adversary possession. That law as settled without a dissentient voice, is, that the possession necessary to constitute a bar, must be actual, adverse, and continued; and yet the instruction of the court tells the jury that this continued, actual, adverse possession may be without actual and continued occupancy, without cultivation, without the erection of buildings or improvements; and in lieu of these visible intelligible indicia of possession, the criteria to which the jury are referred, are the continued exercise of open and notorious acts of ownership. *And ■ when we enquire what are those open and notorious acts of ownership, we find them described, in the general, to be such as are consistent with, and indicate a notorious claim of the property, and could not be exercised without such claim. And when we enquire what are the particular acts which belong to this class, we find that of all the acts therein enumerated, there is not one of them that indicates possession for more than one day at a time. Indeed there is not one of them that indicates possession at all, either actual or constructive, except it be the selling timber from the land, and the survey of it. Each of these acts is in its nature temporary and fleeting, and might be performed and often repeated, in perfect consistency with an actual, continued, adversary possession of the land by the elder patentee.

The fifth instruction in substance tells the jury, that, if they shall think that a prudent man holding the senior patent, ! would have come to a knowledge of the acts *82of ownership exercised by the defendant, then actual knowledge of them was not essential to the perfection of the bar. This is indeed a most vague criterion, by which to test the question whether we have forfeited our rights to land held under the commonwealth’s grant: and yet, perhaps, it is an imperfection inherent in the new doctrines, which have been brought to bear upon the statute of limitations. When notorious acts of ownership were to be substituted for the plain and obvious fact of possession, as the exercise of these acts might often deprive men of their property, who had been guiltj' of no laches in respect to it, it was thought fit to throw over it the protection which was to be found in the actual knowledge of the true owner, that his land was claimed by another, and in some sort appropriated to the use of that other; and in this guise it is, that the doctrine of notorious acts of ownership is presented to us for the first time, in the *case of Ewing v. Burnet, 11 Peters 41. It is, perhaps, but in the natural course of things, that when these doctrines are established, the jury should be told, that they were to presume that the demandant had knowledge of those facts, which would have been known by a prudent man. We, however, protest against every step in this progress of innovation. We insist that the doctrine of notice has no place in the law of the limitations of actions. The legislature has chosen for wise purposes of policy, to prescribe that certain facts shall constitute a peremptory bar to the action; and this bar is equally peremptory whether or not the demandant had notice of the facts, except in the case of undiscovered fraud. It would seem to us, therefore, to be conclusive against the propriet3r of admitting the doctrine of the exercise of notorious acts of ownership, as a substitute for actual occupancy, that it is essential to the justice of this new doctrine that it should carry along with it the doctrine of notice.

*

Judge Allen had been counsel in the court below.

†

Statutes of Limitation—Statutes of Repose.—See principal case cited in *foot-note*to Anderson v. Harvey, 10 Gratt. 387 ; Virginia Mining, etc., Co. v. Hoover, 82 Va. 454, 4 S. E. Rep. 692.

Adversary Possession for Statutory Period—Effect.— It is well settled that adversary possession for the period fixed by the statute operates to create or transfer to the party in possession a title which will enable him either to defend his possession, or recover possession against a title once the better title. Ketchum v. Spurlock, 34 W. Va. 599, 12 S. E. Rep. 832, citing the principal case; Core v. Faupel, 24 W. Va. 242; Hall v. Hall, 27 W. Va. 480 (which also cites the principal case for the proposition); Nowlin v. Reynolds, 25 Gratt. 137.

‡

Adverse Possession—What Constitutes.—When we look to the elements of an adversary possession in reference to conflicting claims and the statutory prescriptive bar, we find it to consist of an exclusive, actual, continued possession under a colorable claim of title. It must be: first, exclusive; second, it must be actual as contrasted with constructive possession; and third, such exclusive and actual possession must continue in the claimant of those under whom he claims for the period prescribed by the statute. These three things must concur in order to constitute a valid' title founded on a, claim of adverse title. Trotter v. Newton, 30 Gratt. 590, citing the principal case. For this proposition, see the principal case also cited in Virginia Midland R. Co. v. Barbour, 97 Va. 123, 33 S. E. Rep. 554; Core v. Faupel, 24 W. Va. 242; Garrett v. Ramsey, 26 W. Va. 350; Swann v. Young, 36 W. Va. 72, 14 S. E. Rep. 431, 432; *foot-note*to Thomas v. Jones, 28 Gratt. 583.

In Garrett v. Ramsey, 26 W. Va. 350, itis said: “Adverse possession is one dependent on *adverse and conflictina title*grounded upon an *ouster*of the rightful owner, and which in case of a *freehold*is known as a *disseizin.*To constitute *adverse*possession there must be a possession *under*claim of title, and it must consist of an exclusive, continued, visible, notorious and hostile possession under a colorable claim of title. (Dawson v. Watkins, 2 Rob. 259; *Taylor's Devisees v. Burnsides, 1 Gratt. 186;*Nowlin v. Reynolds, 25 Gratt. 141; Core v. Faupel, 24 W. Va. 238.)”

On the subject of adverse possession, see the principal case also cited in Taylor v. Philippi, 35 W. Va. 560, 14 S. E. Rep. 132; *foot-note*to Caperton v. Gregory, 11 Gratt. 505; Peterson v. Ankrom, 25 W. Va. 63; Mullan v. Carper, 37 W. Va. 229, 16 S. E. Rep. 532; Turpin v. Saunders, 32 Gratt. 36; Koiner v. Rankin, 11 Gratt. 428, 429, 430; Pasley v. English, 5 Gratt. 153.

Adverse Possession—Actual Possession.—Possession is a detention or enjoyment of a corporal thing which one holds or controls by himself or by another who keeps or controls it in his name, and is either *actual*or *constructive. Actual possession*exists where the thing is in the immediate control or occupancy of the party or his agent or tenant. Garrett v. Ramsey, 26 W. Va. 369, citing the principal case. The most usual and decisive modes and acts of actual possession are occupation, residence, cultivation, inclosure, and improvement. Core v. Faupel, 24 W. Va. 245, citing the principal case. But the adverse possession need not of necessity be evidenced by actual inclosure and cultivation, but may be by other open, notorious, and habitual acts of ownership, sufficient to amount to actual possession. Kincheloe. v. Tracewells, 11 Gratt. 602, citing the principal case, and Overton v. Davisson, 1 Gratt. 211, as establishing the proposition.

As authority for the propositions above laid down, see principal case and Overton v. Davisson, 1 Gratt. 211, also cited in Harman v. Ratliff, 93 Va. 253, 24 S. E. Rep. 1023; *foot-note*to Koiner v. Rankin, 11 Gratt. 421; Clark v. Perdue, 40 W. Va. 305, 21 S. E. Rep. 737 ; Lennig v. White, 1 Va. Dec. 890.

In Garrett v. Ramsey, 26 W. Va. 350, it is said : “Actual possession, to constitute adversary possession, must be an *actual occupation*or else the use and enjoyment thereof by the act of ownership *equivalent*to such actual occupation. But no adversary possession can ever be acquired by any acts of ownership over the land, which fall short of such *actual*occupation, *use or*enjoyment. (Taylor’s Devisees v. Burnsides, 1 Gratt. 166, Syl. 4 ; Overton’s Heirs v. Davisson, 1 Gratt. 211, Syl. 8.)”

Adverse Possession—Colorable Title—Extent of Possession.—In Stull v. Rich Patch Co., 92 Va. 275, 23 S. E. Rep. 293, it is said: “It is settled in this state that when a person, having colorable title, enters upon vacant land, claiming title to the whole tract covered by his title papers, his possession is co-extensive with his boundaries, and this is true although the title conveyed by the writing under which he claims is worthless. Creekmur v. Creekmur, 75 Va. 431, 439; 1 Lomax Dig. 797 ; 2 Minor’s Inst. 481 (4th Ed.). In *Taylor v.*Burnsides, *1 Gratt. at pages 191-2,*Judge Baldwin says ‘that the adverse claimant entering and holding under a colorable title, (for example, a patent, deed, or other document,) upon a vacant possession, gains the actual possession to the extent of his boundaries,’ (and this doctrine) ‘is sustained by numerous authorities, and contradicted by none that I have seen.’ ”

And in Oney v. Clendenin, 28 W. Va. 53, it is said: “The principal office of a claim or color of title is to define the boundaries and fix the extent of the adverse1 holding. If it isa mere claim of title, the adverse holding will be limited to the actual enclosure of the claimant. But if it is a deed or other paper title, and the possession is exclusive, it will be regarded as co-extensive with the boundaries contained in such deed or paper. The color of title, however, may be good or bad, legal or equitable. *75These views are sustained by these Virginia and West Virginia cases: Kincheloe v. Tracewells, 11 Gratt. 587; Taylor v. Burnsides, 1 Gratt. 165; Shanks v. Lancaster. 5 Gratt. 110; Adams v. Alkire, 20 W. Va. 480; Garrett v. Ramsey. 26 W. Va. 345; Overton v. Davisson, 1 Gratt. 211; Koiner v. Rankin, 11 Gratt. 420.” To the same point, the principal case was cited in Garrett v. Ramsey, 26 W. Va. 370; *footnote*to Kincheloe v. Tracewells, 11 Gratt. 588.

Same—Conflicting Titles—Extent of Possession.— “Where there are conflicting titles, if the junior claimant settles within his boundary, but outside of the interlock or land in controversy, he gains no actual possession of the land in controversy, whether the possession of the senior claimant be actual or constructive only. Where there is no controversy, the rule that possession of the part is possession of the whole, is to be taken in reference to the entire tract, but where there is a conflict of title it is to be taken in reference to such conflict. Without actual possession of some part of the land in controversy, the junior claimant can gain no possession of that subject against the better right of the senior claimant. If the law were otherwise, as was said by Judge Baldwin, the lawful owner might be disseised, not only without his knowledge, but without the means of acquiring it.” Sulphur Mines Co. v. Thompson, 93 Va. 321, 25 S. E. Rep. 232, citing the principal case.

Adverse Possession—How Entry Should Be Made.— See *foot-note*to Koiner v. Rankin, 11 Gratt. 420, Turpin v. Saunders, 32 Gratt. 34, citing the principal case.

§Adverse Possession — Must Be Continuous. — In Parkersburg Ind. Co. v. Schultz, 43 W. Va. 475, 27 S. E. Rep. 256, it is said: ’‘To confer title by the statute of limitations, it is indispensable that the possession be unbroken and continuous for the period of the statute. Core v. Faupel, 24 W. Va. 239; Oney v. Clendenin, 28 W. Va. 34. Ever so short a break will destroy all the preceding holdings, and the possession must begin *de novo.*Hutch. Land Titles, §378; Downing v. Mayes (Ill. Sup ), 38 N. E. Rep. 620. So, if there be a voluntary abandonment before the bar is complete, the possession amounts to nothing. *Taylor's Devisees v.*Burnsides, *1 Gratt. 165;*Armstrong v. Morrill, 14 Wall. 146.” See also, principal case cited in Early v. Garland, 13 Gratt. 7; Hollingsworth v. Sherman, 81 Va. 674. See further, cases cited in *foot-note*to Cline v. Catron, 22 Gratt. 378; *foot-note*to Koiner v. Rankin, 11 Gratt. 420.

• ¡Adverse Possession—Interlock.—On the subject of interlock, see the principal case and Overton v. Davisson, 1 Gratt. 211, cited in Ilsley v. Wilson, 42 W. Va. 770, 26 S. E. Rep. 555; Cline v. Catron, 33 Gratt. 393; Anderson v. Harvey, 10 Gratt. 397; *footnote*to Koiner v. Rankin, 11 Gratt. 420; Garrett v. Ramsey, 26 W. Va. 356, 362, 363, 365, 372.

Same—Same—Actual Possession of Part of Interlock by Both Patentees — Effect. — Where the senior grantee is in actual possession of any part of interlock at the time of the entry thereon by the junior grantee, then the latter can gain no adversary possession beyond the limits of his mere inclosure without an actual ouster of the senior grantee from the whole of the land in the interlock; for the *constructive*possession of the junior grantee cannot oust the senior grantee of lands in his *constructive*possession; though the *actual*possession of the junior grantee to the extent of the land actually occupied will oust the senior grantee of land of which he had only a constructive possession. To this point, see principal case and Overton v. Davisson, 1 Gratt. 211. cited in Garrett v. Ramsey, 26 W. Va. 357, 374.

Adverse Possession—Interlock—“The Open Question.”—See *foot-note*to Kincheloe v. Tracewells, 11 Gratt. 587; Garrett v. Ramsey, 26 W. Va. 376, 377: Turpin v. Saunders, 32 Gratt. 38, in all of which places, the principal case is cited. See principal case distinguished in Stull v. Rich Patch Iron Co., 92 Va. 281, 23 S. E. Rep. 293.

*

AU the questions raised in the appellant’s assignment of errors, were discussed by the counsel on both sides, hut the length of the argument (even yet much too great) rendered it expedient to omit such as seemed to he of secondary importance. As on one of the questions discussed, the court were divided in opinion, and it is still unsettled, the argument is given more at length.

BABITWXN, J.

The terms seisin and disseisin have their origin in the feudal law, and their precise technical signification is now obscured by the progress of society, and the mists of time. It is sufficient, in the administration of justice, to ascertain their practical application at the present day; and this is to be found chiefly in reference to the validity of conveyances, the acquisition of titles by marriage, and the operation of the statutes of limitation. In reference to these subjects, seisin may be considered as importing the possession of him who has an estate of freehold; and disseisin, as the wrongful dispossession or ouster of him by another. Such wrongful dispossession or ouster, or any other wrongful exclusion of the owner from the possession, is generally the commencement of an adversary possession; which when accompanied by a claim of title may, in progress of time, be ripened into a right of possession, and ultimately into a perfect title. I

*The statutes of limitation are emphatically statutes of repose, and are dictated by a wise policy, founded upon the presumption against him who has unreasonably delayed the assertion of his demand, and in favour of him who has long exercised the dominion of owner. Their operation is, however, upon a supposition opposite to their policy. They are not made for the protection of wrongdoers; and yet as they apply only between hostile pretensions, and against the apparently better right, they attribute a wrongful inception to the possession and enjoyment which they protect.

The most important English statutes limiting actions for the recovery of real property, are those of 32 Hen. 8, ch. 2, and 21 Jac. 1, ch. 16. I need only notice such of their provisions as bar the right of entry, and the writ of right. The statute of 21 Jac. provides, “that no person , or persons shall at any time thereafter make any entry into any lands, tenements or hereditaments, but within twenty years next after his or their right or ti.tle, which shall first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry, after to be made.” The statute of 32 Hen. 8, provides, “that no manner of person or persons shall sue, have or maintain any writ of right, or make any prescription, title or claim of, to or for any manors, lands, tenements, rents, &c. or other hereditaments, of the possession of his or their ancestor or predecessor, and declare and allege any further seisin of his or their ancestor, but only of the seisin or possession of his ancestor or predecessor, which shall be seised of the said manors, &c. within threescore years next before the teste of the same writ.”

In Virginia, our acts of limitation conform to these provisions, with some modification in regard to the writ of right. B3’the revised act of 1819, ‘ ‘no person or persons, who now hath or have, or hereafter may have *any right or title of entry, into any lands, tenements or hereditaments, shall make any entry, but within twenty years after such right or title accrued, and such person shall be barred from any entry afterwards:” and, “In all writs of right, and other actions possessory, any person may maintain a writ of right, upon the possession or seisin of his ancestor or predecessor, within fifty years; or any other possessory action, upon the possession or seisin of his or her an-, cestor or predecessor, within forty years before the teste of the writ; but no person shall maintain a real action upon his own-possession-or seisin, but within thirty years next before the teste of the writ.” These periods of limitation were reduced by the act of February 1831; which as to the right of entry makes fifteen 3’ears a bar; and as to the writ of right provides, that “any person may maintain a writ of right, or any other possessory action, upon the possession or seisin of his or her ancestor or *83predecessor, within twenty-five years next before the teste of the writ; but no person shall maintain a real action, upon his own possession or seisin, but within twenty years next before the teste of the writ.”

The terms of these statutory provisions, it will be seen, are directed against the claim of the plaintiff or demandant; but the spirit of them is to protect the enjoyment of the defendant or tenant, after a continued adversary possession during the prescribed periods of time.

Thus, in regard to the right of entry, and consequently the action of ejectment, though the statute prohibits an entry after the lapse of fifteen years from the time that the right or title has accrued; yet an entry may be made, or an action of ejectment, brought, at any distance of time, if a good title can be shewn; unless the other party can prove a continued adversary possession for fifteen years. This cannot be otherwise, in the nature of things, inasmuch as the statute was *'made to settle, not pacific, but conflicting pretensions; and the matter of controversy being the right of possession, such conflict can only exist from and during the time that the possession has been withheld, without the consent and against the title of him who seeks to recover it.

So, in regard to the writ of right, though the statute bars the remedy, where there has not been seisin or possession of the demandant himself for twenty years, or of the demandant and his ancestors, or predecessors for twenty-five years; yet if the demandant shews a good title, such want of seisin or possession must arise from a continued adverse possession, during such respective periods of time. This is generally true in England, when the mise is joined upon the mere right; and it is universally true in Virginia, whatever may be the form of pleading. Here ají actual seisin by taking the esplees or profits, is never necessary to maintain a writ of right, the constructive seisin furnished by the better title derived from the government being all sufficient. Such constructive seisin may be excluded by an adversary possession; but so soon as the adversary possession ceases, the constructive seisin incident to the better title is renewed. Hence the uniform necessity of a continued adversary possession to bar a writ of right, as well as an action of ejectment, and for a longer period of time.

The effect of these statutes is to render a continued adversary possession, for a sufficient length of time, conclusive in the action of ejectment, against the right of possession; and in the writ of right, against the right of property. This result is so absolute, that such adversary possession is not only a sufficient defence on the part of the defendant or tenant; but where it has existed on the part of the plaintiff or demandant, is a sufficient ground for recovery, against the strongest proof of better title.

The inexorable operation of these statutes, disregarding as they do.entirely the original merits of the controversy, *furnishes a sufficient reason for excluding mere presumptions of the facts which they require, and for exacting clear and decisive proofs of their existence. When such proofs are furnished, the enactments should receive a fair and liberal interpretation.

When we look to the elements of an adversa^ possession, in reference to conflicting claims, and the statutory prescriptive bar, we find it to consist of an exclusive, actual, continued possession, under a colourable claim of title.

It must be exclusive. No rule is more reasonable or better settled, than that where two are in possession, one with and the other without title, the law ascribes the possession to him who has the right. Hence the necessity, when the rightful owner is in actual possession, that he should be disseised or ousted, and continually thereafter kept out by the hostile claimant. When the possession is vacant, though the adverse possession cannot begin by an actual expulsion, still it is indispensable that it should be not the less exclusive in its commencement and continuance. Though the adverse claimant cannot in such case turn out, he must shut out the rightful owner; and such exclusion is equivalent to an actual disseisin, or ouster. It is in effect a disseisin, or ouster of the constructive seisin, or possession conferred by a valid title.

An adversary possession must be actual, as contrasted with a constructive possession. The principle of the prescriptive bar is to treat him, who has had the absolute dominion and enjoyment of the property, for a given number of years, as the true owner, against all proofs to' the contrary. It is this absolute dominion and enjoyment which constitutes actual possession; .and there can be none other. A man cannot, by mere phj-sical means, keep such property in his exclusive grasp. Possession may be more manifest as to a part, than as to the rest; but in reference to the whole, possession of part is possession *of the entire tract, or parcel. Thus the real or apparent owner dwelling on his farm, is as truly in the actual possession of his woods and waters, as of his pastures, fields and garden. What is the whole, is to be determined by the limits owned or. claimed. An intruder without colour of title is, of necessity, confined to his mere enclosures: there must be limits to his possession, and these are all he can have. Such, however, are not the boundaries of the real or apparent owner: his marked or described abuttals shew the extent, not merely of his claim, but of his exclusive sway.

The actual possession, therefore, of the adverse claimant, provided it be exclusive, is not restrained to his enclosure; but is coextensive with the boundaries of his. colourable title. What then is to determine *84whether it be exclusive? I answer the existence or non-existence of an actual possession on the part of the rightful owner. According to the rule already stated, if two be in possession, one with good title, and the other without, the law ascribes the possession to him who has the right. But this rule applies only to the case of actual possession. The constructive possession of the rightful owner, incident to his title, yields to an actual possession of the adverse claimant, but to that only. If, therefore, the adverse claimant enters upon the actual possession of the rightful owner, but does not expel him, the possession which he gains does not outreach the limits of his close. He can make it co-extensive with his claim, or colourable title, only by an actual ouster; for that is indispensable to render it exclusive. But when the possession of the rightful owner is merely constructive, there is nothing to prevent an actual, possession of the adverse claimant from being, exclusive; for the result is the same whether the rightful owner be turned out or kept out from the premises: in both cases his dominion and enjoyment are alike suspended, and those of the adverse claimant alike unlimited. That *the adverse claimant entering and holding under a colourable title, (for example, a patent, deed or other document,) upon a vacant possession, gains the actual possession to the whole extent of his boundaries, is sustained by numerous authorities, and contradicted by none that I have seen. Whether, where the possession .is vacant, and he enters and holds without colour of title, but claiming the whole tract or parcel of the rightful owner, he gains an actual possession beyond his enclosure, I express no opinion.

An adversary possession must also be actual, in reference to the means by which it is acquired. In that sense, I understand an actual possession to be the occupation, use or enjoyment of the subject matter of con *troversy,*by residence, cultivation, improvement, or other open, notorious and habitual acts of ownership. Of these modes of occupation, use or enjoyment, residence, cultivation and improvement, respectively, while they continue, are usually the most obvious and decisive. But there may be other open, notorious and habitual acts of ownership, of quite equivalent import and effect. Take, for example, the case of a town resident, who, claiming title to a lot or tract of woodland in the vicinity, openly, notoriously and habitually cuts and hauls from it his necessary supplies of fuel; or in like manner makes it a source of revenue, by sales of firewood or timber. Or the case of an unenclosed and unimproved lot in or near a city.,, devoted by the’próféssed'owner to his tiste ;or iplrpfit,' as a coal, or lumber yard, quarry -or landing place. There cannot be stronger instances of actual possession than these, and other like cases which might be stated: but they can serve only for the purpose of illustration. When we leave the unques-1 tionable tests of residence, cultivation and improvement, every case must depend, in a great measure, upon its own circumstances, and requires a recurrence to the general principle above stated, of open, notorious and habitual *acts of ownership. That principle must moreover be guarded in its application, by taking care not to confound an adverse claim with an actual possession, and by distinguishing between repeated trespasses, under a pretence, or even belief of title, and the dominion, control and enjoyment of actual or apparent ownership.

That an adversary possession requires actual occupancjr, or what is equivalent to it, is sustained by an overwhelming current of American decisions. See the notes and appendix of Tillinghast’s Adams on Eject. There is no case, I think, which when closely examined will be found in opposition to this doctrine, unless it be that of Ewing’s lessee v. Burnet, 11 Peters 41. And if impugned in that case, it is by some of the reasoning, and not by the decision of the court. It was an action of ejectment, in which the verdict and judgment were for the defendant. The property in controversy was a lot in the town of Cincinnati, incapable from the character of its surface of being enclosed, unfit for cultivation, and without any building or other improvement upon it. Its only value was for the ‘sand’and'gravel; and the taking and removing thereof the only use to which it was applied. The evidence tended to prove the open, notorious and habitual use of it by the defendant in that way, for upwards of twenty years; and that his use of it by himself and his lessees was exclusive, except occasional trespasses by others, which he prohibited, and for which he sought redress by actions of trespass.

The case came before the supreme court upon exceptions to opinions of the court below, refusing to instruct the jury, that on the evidence the plaintiff was entitled to a verdict; refusing to instruct the jury, that the evidence was not sufficient in law to establish an adverse possession; and charging the jury upon the principles of adversary possession applicable to the case: and the judgment was affirmed. It cannot be doubted that the *instructions asked were properly refused; and the charge required the strictest proofs of adversary possession. It explained to the jury how there might be continued exclusive occupancy of such property, amounting to adverse possession; but informed them, that the defendant’s “actual possession of the lot, to protect his title under the statute of limitations, must have been twenty-one years before the commencement of the suit —that suing for trespass , on the lot, and speaking' publicly of' ¡his ' claim, were not sufficient to constitute an adverse possession —that any possession short of an exclusive appropriation of the property, by an actual occupancy of it, so as to give notice to the public and all concerned that he not only claimed the lot, but enjoyed the profits aris*85ing out of it, was not such an adverse possession as the statute requires.”

The opinion of the supreme court, delivered by Mr. Justice Baldwin, undertook (what, under the rules separating the provinces of court and jury in Virginia, would be deemed a work of supererogation here) to discuss the evidence for the purpose of proving, that the circuit court properly refused to instruct the jury, that the plaintiff was entitled to a verdict, and that the defence of adversary possession was not established. And without condemning the principles asserted by the court below, the learned judge in the course of his remarks expressed himself thus: “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 colour 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 claim by him, for twenty-one years; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him, if the jury shall think that the property was not susceptible of a more strict or definite possession, than had been so taken and held. Neither actual occupation, cultivation or residence are necessary’ to constitute actual possession, when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim.”

Now, what the court thus said, in relation to acts of ownership sufficient to prove an ouster and continued adverse possession, may be very true in reference to the case before it; was the result of a combination of the circumstances of that case; and required the actual knowledge of them by’ the other party. But, with great deference, it seems to me, it is not a safe guide, if so intended, as furnishing rules to ascertain what is an adverse possession; for the language employed, if taken abstractly, would serve to indicate an adverse claim, rather than an adverse possession. That acts of ownership on the property indicate an adverse claim, is not, as I humbly conceive, sufficient, unless they amount to an adverse possession, that is, to the occupation, use or enjoyment of the premises. Nor is it sufficient that they shew a continued claim of the party, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. Such language strikes me as remarkably loose and indefinite; and as calculated to occasion darkness, *instead of light; which, I think, must be the result of any attempt to give it a practical application, as a test of adverse possession.

The question whether the possession of a party be actual, often arises, upon conflicting titles, under the operation of the rule, that possession of part is possession of the whole. Where the abuttals of the conflicting titles are the same throughout, the question is of easy solution, upon the principles already stated: but it is sometimes attended with difficulty where the abuttals are different, in the whole or in part. There the limits of the one title are either embraced in the broader limits of the other; or the limits of the two conflict, and cause an interlock. Take, for example, the case of two patents thus interfering. If the junior patentee settles within the boundaries of his grant, but outside those of the older patent, in such case, I think, he gains thereby no actual possession of the land in controversy, whether the possession of the older patentee be actual, or constructive only. Tor though where there is no controversy, the rule that possession of part is possession of the whole, is to be taken in reference to the entire tract; yret where there is a conflict of titles, it is to be taken in reference to such conflict. And without actual possession of some part of the land in controversy, the junior patentee can gain no possession of the subject, against the better right of the older patentee. This, I consider, perfectly just and reasonable; for otherwise the lawful owner might be dis-seized not only' without his knowledge, but without the means of acquiring it.

On the other hand, where the older patentee is settled within his own limits, but outside those of the junior patentee, and the latter enters and settles upon the land in controversy, the question is presented, whether it is a case of mixed possession, or of exclusive possession, on the part of the junior patentee. It seems to me that, according to the spirit of the statute of limitations, the ^junior patentee ought to be regarded as in the actual adversary possession of the land in controversy. The senior patentee knows, or ought to know, his own boundaries; and that his adversary has settled within them, claiming and exercising the dominion and control of ownership over the part in controversy. And if, under these circumstances, he is quiescent, and fails to assert his right to the land in controversy by action or entry, he is in effect excluded or ousted therefrom. There can, in such case, be no other ouster, unless the junior patentee be required to go beyond his own boundaries, for the purpose of effecting it, without the shadow or pretence of title. The current of authorities, it is true, is *86against this proposition: but the decisions on the question in other states, founded upon general reasoning, I regard as inapplicable in Virginia; where we have a statute providing, that possession of part shall not be possession of the whole, where an actual adversary possession is proved. This statute was surely not passed merely for the protection of squatters; and must have been intended to embrace the case of an actual possession of the rightful owner beyond, and of the adverse claimant within, the limits of the part in controversy. Its policy, I regard, as wise and salutary; requiring nothing but a reasonable vigilance on the part of the rightful owner, and necessary for the repose of bona fide ■ settlers in our extensive regions of wild and uncultivated lands. If it should be said, that this statutory provision operates both ways, and prevents the junior patentee’s'possession of part of the land in controversy from being a possession of the whole land'in controversy, inasmuch as the older patentee has an actual adversary possession; I answer, that, in the case supposed, the older patentee’s actual adversary possession is not of any'part of the land in controversy; and his constructive possession must yield to the adversary possession of the junior patentee, unless it can be maintained, as, I think; *it cannot, that an entry and settling upon land in controversy, under a claim thereto by the definite boundaries of a colourable title, is not an ouster of the adverse party to the extent of those boundaries, when he has no adverse possession within them. The extent of a disseisin must in the nature of things depend, in a-great measure, upon the intent of the disseizor, and the acquiescence of the disseizee.

It follows from what has been said, that wild and uncultivated lands cannot be made the subjects of adversary possession, while they remain completely in a state of nature. A change in their condition, to some extent, is therefore essential; and the acts by which it is effected are often the strongest evidence of actual possession. Without such change, accomplished or in progress, there can be no residence, cultivation or improvement; no occupation, use or enjoyment. Evidence short of this may prove an adversary claim ; but, in the nature of things, cannot establish an adversary possession. Nor is there any reason for relaxing the rules of law on this subject, in behalf of the adversary claimant of such property. There ought to be no presumption in- his favour against the better title. It is in vain for him to say, that he has had all the possession of which the property was then susceptible; for that would lead to a constructive possession, which is only attributable to the rightful owner.

- In controversies concerning wild and uncultivated lands, the usual marks of actual possession are concurrent improvement, cultivation and residence; the two former, of course, at least in the earlier stages of the prescriptive period, to a very limited extent. But the degree is immaterial, if the acts be real and bona fide. More or less is unimportant, if there be enough to indicate apparent ownership. And the actual possession thus gained, if exclusive, extends throughout the borders of the colourable title, whether those be large or small. In New York, the doctrine by which occupancy *of part may give adversary possession of the whole, has been held to be applicable only to small, and not to large tracts; because of the usual notoriety in regard to the former, and the probable want of notice, on the part of the rightful owner, in regard to the latter. Jackson v. Woodruff, 1 Cowen 276. But it seems to me, that the distinction between large and small is too indefinite for practical utility; and that the probability of notoriety or want of notice are considerations, which though entirely proper in determining what acts are of such a nature as to give actual possession, yet they cannot affect the application of them to the particular subject of controversy. To make a case turn upon the probability or improbability of notice, under the particular circumstances, would make it a question of constructive, and, by consequence, of actual notice also; whereas the doctrine of adversary possession rests upon no such uncertain and precarious grounds. The rule 'in New York is, I believe, peculiar to that state. In other states, and in the supreme court of the United States, the doctrine that adversary possession of part extends to the whole limits of the colourable title, when not opposed to an actual possession of the rightful owner, is applied freely to extensive boundaries. Barr v. Gratz, 4 Wheat. 213; Clarke’s lessee v. Courtney, 5 Peters 319.

When the defendant or tenant has succeeded in proving an adversary possession, and in furnishing prima facie evidence of its continuance for a sufficient length of time; it is then incumbent on the plaintiff or demandant to shew that the continuity has, in fact, been interrupted or broken. This may be done by proof of an abandonment of the possession, or a surrender of its adversary character; or of entry and possession, or of entry alone, on the part of the plaintiff or demandant.

- Entry is a remedy given by law to the rightful owner, in order to obtain or regain the possession; and though not followed up by an actual possession, yet if made *with due formality, is an answer to the defence of adversary possession, in an action of ejectment; so as to require a new adverse possession from that time. This effect is restrained in England, by the stat. 4 Ann. ch. 16, (S 16, to cases in which an action is commenced within one year from the date of the entry; but we have no such statute in Virginia. If the entry be followed up by an actual possession, but without expulsion of the adverse claimant, then the case is presented of a Co-existing or mixed possession, which while it continues prevents the operation of *87the statute. But if the entry be not congeable or allowable by law, for example when barred by the statute, though it be followed up by an actual possession, it does not affect the defence of adversary possession, in the' action of ejectment. It is otherwise, however, in a writ of right; Bolling v. Mayor of Petersburg, 3 Eand. 510; for that remedy not involving the lawfulness of the possession, but a mere comparison of titles, the defence requires an adversary, and, of course, exclusive possession, for a sufficient length of time to bar the right of property.

In an old and densely peopled country like England, disputes which turn upon the question of actual possession can but seldom arise; and accordingly we find the English books quite meagre, upon so much of the doctrine of adversary possession. But, in our new country, where civilization has had to invade the wilderness, and subdue its savage haunts, much confusion in the limits of possession, as well as title, has sprung from hardy enterprise and adventurous speculation. This has given rise to innumerable controversies; and the American cases grieve the labour of research, not by the absence, but the excess of authority. Hence I have thought it necessary to seek the guidance of principle through the labyrinth of adjudication.

The cause before us turns chiefly upon the propriety of the instructions given by the court to the jury on *the trial; and these must be considered in reference to the evidence as stated in the bills of exception. It appears therefrom, that the land in controversy is a tract granted by the patent from the commonwealth under which the tenant claims, and'the whole of which is embraced in the much broader limits of the older patents under which the demandants claim. And by a comparison of the instructions with the evidence, the fair inference is that the -opinions of the court expressed by the instructions had reference to the land in controversy, as being unimproved, uncultivated and completely in a state of nature; or, at least, that the jury were not made to understand that proof was requisite of any change in its condition by clearing, building or otherwise. In considering the instructions, T shall, without repeating them, state and comment upon the propositions which they assert, as I understand them.

The first instruction embraces the following propositions:

1/ That in the state of facts above mentioned, if a junior patentee, or those claiming under him, enter upon the land in controversy, claiming title thereto under their grant, such entry and claim give an adversary possession, and constitute an ouster of the constructive possession of the older patentee; or those-entitled under-him, to the extent of the boundaries of the younger grant. I cannot assent to the correctness of this proposition. There can be no ouster of the constructive possession of j the older patentee, but by an actual adver- • sary possession; and of this, wild and uncultivated lands, completely in a state of nature, are not susceptible. An adversary possession of them can only be acquired by acts producing a change in their condition. When the books speak of an ouster by entry upon, with claim of title to such lands, they do so in contemplation of an entry into and a holding of the actual possession, by the *means requisite for that purpose. A contrary doctrine would lead to the strange result of an owner’s being deprived of his land, by a mere formal claim of his adversary without title. The error of this proposition pervades the whole of the instructions ; and therefore, in order to the examination of the other propositions which they contain, it is necessary to suppose, contrary' to the fact, that they contemplate an ouster by acts of the nature above mentioned.

2. That an ouster of the constructive seisin of a demandant, or those under whom he claims, has the effect of defeating the same, unless the demandant (if he claims under an ancestor or predecessor) proves a subsequent actual entry by such ancestor or predecessor upon, and taking possession of, the premises, within twenty-five years before the institution of the suit. This proposition I consider erroneous. The constructive seisin or possession of an elder patentee, or those claiming under him, is not defeated, but only suspended, by an ouster; and can only be defeated by a con - tinned adversary possession, for the length of time prescribed by the statute of limitations. If the adverse possession be interrupted or broken during that time, the constructive seisin of the elder patentee, or those claiming under hi,m, is thereby revived ; and enables the demandant, if he holds the title, to recover the property, without an actual entry, even although the ouster was from an actual possession.

The second instruction embraces the following propositions:

1. That a patent from the commonwealth for lands, not previously granted, confers on the patentee, and those deriving title from him, a constructive or legal seisin, which enables them to maintain a writ of right. This proposition is correct upon principle, well sustained by authority, and conceded by the appellants’ counsel.

*2. It is equally true that, though a demandant, or those under whom he claims, have been ousted of their constructive seisin of the land in controversy, yet if the adversary possession of the tenant, or those under whom he claims, gained by such ouster, be afterwards abandoned, the constructive seisin of the demandant, by virtue of his older grant, is thereby revived, and will enable him to maintain his writ of right. But this is qualified by another proposition, to wit:

3. That such constructive seisin must have been revived within twenty-five years before the institution of the suit. Now, as the revival of the constructive seisin results from the abandonment of the adversary *88possession, it follows, if the proviso be correct, that the abandonment must have been within the twenty-five years; and therefore that an abandonment of the adversary possession before the twenty-five years would avail the demandant nothing. This cannot be so. The constructive seisin, when once revived, continues until again suspended by a new adversary possession.

The third instruction contains the following propositions:

1. A renewal, by implication, of the second erroneous proposition of the first instruction, that an ouster of the constructive seisin of the demandant, or those under whom he claims, has the effect of defeating the same; unless the demandant (if he .claims under an ancestor or predecessor) proves a subsequent actual entry upon, and taking possession of, the premises, within twenty-five years before the institution of the suit.

2. That such actual entry and taking possession must be of the land within the limits of the defendant’s grant, that is of the land in controversy; unless the adversary possession of the tenant, or those under whom he claims, had been previously abandoned.

3. In case of such abandonment an actual entry and taking possession of the land outside of the tenant’s grant, but within the demandant’s grant is sufficient.

*The whole of this third instruction, taken as a whole, I consider untenable. It is founded upon the erroneous idea that an actual entry and taking possession by the demandant, or those from whom he derives his title, is, under any circumstances, necessary; except for the purpose of breaking the continuity of an adversary possession of the tenant, or those under whom he claims. When necessary for that purpose, it is true, it must be of the land in controversy, and not merely outside the tenant’s grant; because it was of the former only that the demandant, or his ancestor or predecessor, was disseized or ousted. And it is also true that an entry alone is not sufficient; there must be an actual possession, by the requisite means, for reasons already stated.

The fourth instruction comprises the following propositions:

1. That after an ouster it is not necessary to a continued adverse possession, so as to bar, under the statute of limitations, a demandant’s recovery, that there should be proof of an actual and continued occupancy of the premises, or a cultivation of the soil, or the erection of houses or other improvements thereon. This, I consider substantially correct: the continued use or enjoyment of the premises, by open, notorious .and habitual acts of ownership, I consider equivalent to occupancy by residence,’ cultivation or improvement.

2. That if the jury believe from the evidence that the tenant, and those under whom he claims, did, from the time of such ouster, continue to exercise open and notorious acts of ownership “over” the premises, they might infer therefrom a continued adverse possession against the demandant. This, I consider erroneous. It is an adoption of one of the objectionable criteria of adverse possession stated in the case of Ewing’s lessee v. Burnet; and without the explanation furnished by the peculiar circumstances of that case; or requiring as in that case, that the acts of ownership should be done *“upon” the land; or, as in that case, that the jury should believe from the evidence, that the property was not susceptible of a more strict or definite possession than had been so taken and held.

3. That for .the purpose of aiding the jury, in determining what would constitute the exercise of such open and notorious acts of ownership, amounting to an adversary possession, the jury should take into consideration such acts of the tenant, and those under whom he claims, as are consistent with, and indicate a notorious claim of the premises, and which from their nature could not have been exercised without such claim. I cannot approve of this proposition. It is an adoption of another.of the objectionable criteria of adverse possession stated in the case of Ewing’s lessee v. Burnet; and without the qualification in that case, that the property was so situated as not to admit of any permanent useful improvement.

4. That for the purpose of further aiding the jury as aforesaid, the facts, if proved to their satisfaction, that the tenant, or those under whom he claims, claimed the title to the premises for more than twenty-five years prior to the institution of the suit, occasionally - visited the land, had it entered upon the tax books, paid the taxes thereon, prohibited waste and trespasses from being committed upon it, sold and permitted timber to be taken off the land, made open sales of the land, took survej’ors upon it and openly surveyed it, executed conveyances therefor and placed them upon the record—-these and other acts of the tenant, and those under whom he claims, of the same nature, if proved to the jury, became proper for their consideration, for the purpose.aforesaid. This proposition, I consider erroneous.

In the first place, it seems to me objectionable, because it does not discriminate properly between .the relative functions of the court and the jur3r; and this objection applies also to the last proposition. What facts *amount to an adverse possession is a question of law, for the instruction of the court to the jury. Whether the evidence establishes such facts is a question of fact for the jury, whose duty it is to conform to the opinion of the court upon the law of the case. To instruct the jury that certain designated facts were proper for their consideration, upon the question of adversary possession, was to submit to the jury the whole question of law and fact. It gave them no information whatever; and amounted on^y to this, that it was proper for them to consider the evidence before them. Its proba*89ble tendency was to mislead them. Under this instruction, it was competent for the jury to decide, without violating the direction of the court, that the payment of taxes, or a sale of part of the land, amounted to adversary possession.

In the next place, I consider the proposition objectionable, because the facts designated, with a single exception, whether taken separately or collectively, had no tendency to prove an adversary possession, except so far as they indicated an adversary claim. But they were submitted to the jury upon the question of actual possession also. They were all perhaps entirely proper, when an actual possession was proved, for the purpose of shewing its adversary character : but an adversary claim merely, however open and notorious, and whether on or ofE the premises, does not give an actual possession. It does not shew an occupation, use or enjoyment of the premises. In truth, an adverse claim seems here to have been confounded with an adverse possession. A continual claim is a remedy which the law, in some cases, gives to the true owner, to preserve his right of entry: but upon what principle can it be regarded as conferring actual possession upon him who has no title? Payment of taxes, prohibition of trespasses, surveys of the land, sales and conveyances of it; though they may serve to shew a claim of title, are not evidence *of actual possession. Jackson v. Myers, 3 Johns. R. 383; Dawson v. Watkins, 2 Rob. R. 259; Tillinghast’s Adams on Eject. 43, n. Even the cutting and selling of timber by the tenant himself, or by his authority, is but a transient trespass, unless habitual: Tillinghast’s Adams on Eject. 493, appendix: and surely a sale of part of the land gives the vendor no possession of the residue.

The fifth instruction asserts it to be unnecessary that a demandant, or those under whom he claims, should have had knowledge of the facts relied on by the tenant to prove an adversary possession; if such facts were of such a nature that the demandant, or those under whom he claims, by the exercise of that care and attention and vigilance, which it is expected that every prudent man would exercise over his property, might reasonably be expected to have acquired a knowledge thereof. This proposition is, in my opinion, erroneous. It tends to introduce new, and it seems to me fallacious tests of adversary possession. Its purport is to require notice to the demandant, or those under whom he claims, of the acts of ownership in question, unless the want of notice be attributable to their negligence. But if the facts amount to actual possession, the demand-ants’ want of notice cannot prevent it: if they do not amount to actual possession, then the demandants’ negligence cannot give it. It is enough that possession be evidenced by actual occupation, or what is equivalent to it: and less than this is not enough. Acts of ownership are required to be open and notorious, not in reference to the fact of notice to the opposite party, or the public; but as contradistinguished from what is furtive, clandestine or secret. And the general knowledge of the neighbourhood, or the particular knowledge of the other party, can be in nowise material, except for the purpose of repelling the imputation that they were underhand or surreptitious.

*My opinion, therefore, is, that the court ought not to have given the instructions aforesaid, but, in lieu thereof, ought to have instructed the jurjr to the effect following, to wit:

1. If the jury shall believe that the grant from the commonwealth, under which ¿he tenant claims, embraces the land in controversy; and that the same is also embraced by the older grants from the commonwealth under which the demandants claim; and that the demandants have acquired title to said land, under said older grants: then that such title is sufficient to enable the demandants to maintain their writ of right, in the absence of a sufficient legal defence on the part of the tenant.

2. If the demandants, or those under whom they acquired title, had not actual possession of the land in controversy; and the tenant, or those under whom he claims, entered thereupon, claiming the same under their said younger grant, and took and held actual possession thereof, by residence, improvement, cultivation, or other open, notorious and habitual acts of ownership, and so continued the same under their said claim, for more than twenty-five years before the commencement of this suit, then that the demandants are, by force of the statute of limitations, barred from maintaining their writ of right.

3. The tenant cannot sustain his defence of continued adversary possession, if it shall appear from the evidence that such possession was, within said period of twenty-five years, abandoned by him, or those under whom he claims.

4. The tenant cannot sustain his said defence of continued adversary possession, if it shall appear from the evidence, that the demandants, or those under whom they claim, did, within said period of twenty-five years, enter upon the land in controversy, and take actual possession thereof, by such means as are mentioned in the second instruction.

*5. That such entry of the demand-ants, or those under whom they claim, upon, and jmssession of the land within their older grants, not embraced by the younger grant of the tenant, could not have the effect of an entry upon and possession of the land in controversy.

The views above presented of the instructions actually given will serve to shew, that the instruction asked for by the demand-ants, and also the instruction asked for by the tenant, were properly refused.

I think there is no error in the opinions of the court stated in the first and second bills of exception taken by the tenant.

It seems to me that the judgment of the *90Circuit court ought to be reversed, and the cause remanded for a new trial, with a direction that the instructions given by the court on the former trial are not to be repeated.

STANARD, J.,

dissented from the opinion of Baldwin, J., on the question whether the entry of the junior patentee was an ouster of the senior patentee to the extent of the boundaries of the junior patent; the senior patentee being in actual possession of the land embraced within his patent lying without the bounds of the junior patent. He was of opinion that under such circumstances, the ouster only extended to the limits of the close of the junior patentee.

The following is. the judgment of the court, in which the President and Stanard and Baldwin, J., concurred.

The court is of opinion that the instructions given by the said circuit court to the jury on the trial of the cause ought not to have, been given ; but that in lieu thereof, the said circuit court ought to have instructed the jury to the effect following, to wit:

1. If the jury shall believe that the grant from the commonwealth, under which the tenant claims, embraces the land in controversy; and that the same is also embraced '*by the older grants from the commonwealth under which the demandants claim; and that the demandants have acquired title to said land, under said older grants: then that such title is sufficient to enable the demandants to maintain their writ of right, in the absence of a sufficient legal defence on the part of the tenant.

2. If the demandants, or those under whom they acquired title, liad not actual possession of the land in controversy; and the tenant, or those under whom he claims, entered thereupon, claiming the same under their said younger grant, and took and held actual possession thereof, by residence, improvement, cultivation, or other open, notorious and habitual acts of ownership, and so continued the same under their said claim, for more than twen.ty-five years before the commencement of this suit, then that the demandants are, by force of the statute of limitations, barred from maintaining their writ of right.

3. The tenant cannot sustain his defence of continued adversary possession, if it shall appear from the evidence . that such possession was, within said period of twenty-five years, abandoned by him, or those under whom he claims.

4. The tenant cannot sustain his said-defence of continued adversary possession, if it shall appear from the evidence, that the demandants, or those under whom they claim, did, within said period of twenty-five years, enter -upon the land in controversy, and take actual possession thereof, by such means as are mentioned in the second instruction.

5. That such entry of the demandants, or those under whom they claim, upon, and possession of the land within their older grants, not embraced by the younger grant of the tenant, could not have the effect of an entry upon and possession of the land in controversy.

And the court is further of opinion that there is no other error in said judgment: wherefore it is considered *by the court that the said judgment of said circuit court be reversed and annulled, and that the appellants recover against the appellee their costs by them expended in the prosecution of their appeal aforesaid here. And this court proceeding to render such judgment as the said circuit court ought to have given, it is further considered that the verdict of the jurors be set aside, and a new trial awarded of the mise joined between the parties; and upon such new trial the instructions aforesaid given by said circuit court on the former trial are not to be repeated.