Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-07-27
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY W. B. MARTIN.
tE1cluoively for VirEinian- Pilot)

VA. NJ. II. co. V. BARBOUR. sc.
Supreme Court of Appeals Of Virginia.
June 10, 1899.
\ PERSON MAY CLAIM BY AD-
VERSE POSSESSION AGAINST
THE TRUE OWNER OF LAND.
ALTHOGGH HE TOOK POSSES
SION in pRIvITY WITH HIM.
IN SUCH CASE COLOR OF TITLE Is
NOT NECESSARY. BUT PROOF OF
NOTICE TO THE OWNER OF THE
ADVERSE CLAIM MUST BE
CLEAI; AND POSITIVE.
POSSESSION OF AN ENCLOSURE
INCONSISTENT WITH ANOTHER
TITLE, ACCOMPANIED BY y NO
TORIOuS CLAIM OF EXCLUSIVE
PERIOD, WILL BAR THE OTHER
TITLE.
The case appears from the opinion OF
the court.
The court says. after stating the
facts:
Il is insisted that. upon this state of
facts. the possession of the appcllecs
AMI those under whom they claim has
never been adverse - the title Of the
appellant This con .cntiun is based up
ON two grounds. First. that Hicks. af
teT the sale of the land in the proceed
inSs in bankruptcy, was a mere tenant
by sufSrhncc. holding in sub0r,lination
TO tho title of ;he appellant: and. sec
ond. that when he denied the title of
the appellant and claimed ownership in
himself, ne was a mere Squattcr With
out a scintila of titlc.
Ut is true that where the grantor o.
land remains in possession Of il after
conveyance. he holds in suboriination
to the title Of tho grantee; ana in the
earlier decisions this court inclined very
strongly To the View that where one
was in pos session Of land in subord-
nation TO anoth,r'G title. he could not
assert an adverse title without first sur
rendering the possession of the prem
isos. This question Was carefully con-
sidcred IN the case Of Creekmur Y.
Creekmur, - Va. 40. In that case
Judge Staples. vino delivered tine opin-
ion Of the court. after commenting up
on the earlier cases. says that not
withstanding the doubt expressed in
those caScS. il is now settled. by a
great weight OF authority. that al
though a party may enter into the pos
session in rrivity with the true owner
he may, without firSt Surrendcring il
discover such relation ana claim by adj
verse title. The only dls;inc-
ton between this class of cases and
those in which no prvity existed, is
in The degree of proof required To es-
tab!iSh the adverse character Of the
possession. The rule now is that where
the possession is originally takcii or
held under the true owner a clear
positive ana continued disclaimer and
dlsavowal of title ana the assertion of
an adverse right. to be brought home
10 the knowledge of the party. are in
dispcnsahlc before any foundation can
he laid for the operation Of the statute
OF limitations Tho statute. does not
begin 10 operate until the possession
before in privlty with the title of the
true owner becomes tortious and
wrongful by the disloyal acts of the oc-
cupying tenant. which must be open.
continued and notorious. 50 as to pre-
cludc every doubt as To the character
Of the holding M the fact of knhwlo,ice
on ihc part of the owner"
The record in this case shows that
he Possession of the appcllees and
those under whom they claim was in
consistent with the title of the appel
liant. that il was accompanied by n
claim 81 title exclusive of the rights
OF all others. was definite. notorious
ana continued fer more than the statu-
tory period. II also shows that the land
w;ls-.se;ualy onclczed-durlng thai
period. Under the authorities this wns
sufficient 10 bar the right of the an
peliant 10 the land in controversy.
however good its tile may have been
originally. Affirmed.