a verdict, only that the defendant has held quiet possession of the demanded premises for more than twenty years, such verdict cannot, by legal intendment, be considered as establishing the alleged fact of disseisin. In equity, of course, as well as at law, it may be shown, from circumstances, that the possession of the defendant ought or ought not to be considered as adverse.2

§ 391. The jury have to consider, that, to constitute complete possession in contemplation of law, requires an act of the body, accompanied with a will of the mind; that is, there must be a corporeal

Runcorn v. Cooper, 5 Barn. & Cress. R. 696. That the doctrine in this country is, that the question of adverse possession, as one of intention, ought to be left to the jury, see, in particular, Bradstreet v. Huntington, 5 Peters (U. S.), R. 402; Poignard v. Smith, 6 Pick. (Mass.), R. 172. Also, the following cases: Jackson v. Joy, 9 Johns. (N. Y.), R. 102; Jackson v. Stephens, 13 id. 496; Gayette v. Buthune, 14 Mass. R. 55; Jackson v. Porter, 1 Paine (Cir. Co.), R. 466; M'Clung v. Ross, 5 Wheat. (U. S.), R. 124; Cummings v. Wyman, 10 Mass. R. 468; Atherton v. Johnson, 1 N. Hamp. R. 34; Jackson v. Jadwin, 9 Johns. (N. Y.), R. 102; Pray v. Pierce, 7 Mass. R. 383; Helm v. Howard, 2 H. & M'Hen. (Md.), R. 74; Seymour v. Delancy, 1 Hopk. (N. Y.), Ch. R. 449; Porter v. Dugut, 9 Mart. (La.), R. 92; Proprietors of Kenn. Purchase v. Springer, 4 Mass. R. 416; Mill Dam Corp. v. Bullfinch, 6 Mass. R. 229; Pray v. Price, 7 Mass. R. 391; Brown v. Porter, 10 Mass. R. 93; Warren v. Childs, 11 Mass. R. 222; Bolling v. Petersburg, 3 Rand. (Va.), R. 563; Wallace v. Duffield, 2 S. & Rawle (Penn.), R. 527; Jackson v. Sharpe, 9 Johns. (N. Y.), R. 163; Jackson v. Waters, 12 id. 365; Jackson v. Thomas, 16 id. 293; Smith v. Burtis, 9 id. 174; Jackson v. Ellis, 13 id. 118; Jackson v. Wheat, 18 id. 40; Jackson v. Newton, id. 355; Bramdt v. Ogden, 1 id. 156; Kinsell v. Duggett, 2 Fairf. (Me.), R. 309; Schwartz v. Kuhn, 1 id. 274; Jackson v. Schoonmaker, 4 Johns. (N. Y.), R. 390; La Frombois v. Jackson, 8 Cowen (N. Y.), R. 603; Bracken v. Martin, 3 Yerg. (Tenn.), R. 55; Stephens v. Dewing, 2 Aik. (Vt.), R. 112; M'Nair v. Funt, 5 Mo. R. 300; Rogers v. Madden, 2 Batl. (S. C.), R. 321; Jones v. Porter, 3 Penn. R. 134; Malson v. Frye, 1 Watts (Penn.), R. 433; Read v. Goodyear, 17 S. & Rawle (Penn.), R. 350; Bell v. Hurtleg, 4 Watts & S. (Penn.), R. 32; Brown v. M’Kinney, 9 Whart. (Penn.), R. 567; Mercer v. Watson, 1 Watts (Penn.), R. 330; Overfield v. Christie, 7 S. & Rawle (Penn.), R. 172; Munshower v. Putton, 10 id. 334; Iler v. Heirs of Routh, 3 Miss. R. 276; Jones v. Porter, 3 Penn. R. 1341; Read v. Goodyear, 17 S. & Rawle (Penn.), R. 350; Hopkins v. Robinson, 3.Watts (Penn.), R. 205; Colburn v. Hollis, 3 Met. (Mass.), R. 125; Kinsell v. Daggett, 2 Fairf. (Me.), R. 309.

1 Pejepscot Proprietors v. Nichols, 1 Fairf. (Me.), R. 256. Semble. [In Conyers v. Kenan (4 Geo. 308), it is made a query, whether every possession of the land of another is not primâ facie adverse.]

2 Wallace v. Duffield, 2 S. & Rawle (Penn.), R. 527. And see ante, Chap. III. [In South Carolina it has been held, that, where the possession is in fact adverse, the party so holding may set up the statute, although he may have practised deceit to lull the owner of the land into the belief that he did not intend to claim adversely. Strange v. Durham, 1 Brev. (S. C.), 83. And see ante, §§ 185, 186.]

occupation, or a possessio pedis, as it is sometimes designated,1 attended, as has been before mentioned, with a manifest intent to hold and continue it; and, when the intent plainly is to hold it against the claim of all other persons, the possession is hostile, or adverse to the rights of the true owner. Such intent may be manifested by decided acts of ownership, such as, in a thickly-settled country, digging stones or turves, as in England, with the occasional cutting of timber, which are conclusive evidence of a continued possession;2 and so, almost anywhere, is actual improvement and cultivation of the soil, and the like. Where one had driven piles into the soil, covered by a mill-pond, and upon them had erected and maintained buildings,

the water flowing between the piles,—it was adjudged to be a possession. And it was so adjudged, because such occupation was open and visible, and almost the only one which, under the circumstances of the subject of the occupation, could have existed to constitute a disseisin, or a complete exclusion of the possession of the demandants. Building upon the land of another is constructive notice of an adverse claim.5

1 See opinion of Wordsworth, J., in Jackson v. Halstead, 5 Cowen (N. Y.), R. 219, and also the opinion of Kent, Ch. J., in Jackson v. Schoonmaker, 2 Johns. (N. Y.), R. 230; Bailey v. Irley, 2 N. & M'Cord (S. C.), R. 343; King v. Smith, 1 Rice (S. C.), R. 10.

2 Stanley v. White, 14 East, R. 332.

3 Brandt v. Ogden, 1 Johns. (N. Y.), R. 156; Jackson v. Waters, 12 id. 365; Proprietors of Kennebec Purchase v. Springer, 4 Mass. R. 416; Small v. Proctor, 15 id. 495; Jackson v. Schoonmaker, 2 Johns. (N. Y.), R. 230; Hawke v. Senseman, 6 Serg. & Rawle (Penn.), R. 21; Jackson v. Porter, Paine (Cir. Co.), R. 467; Stanley v. White, 14 East, R. 322. Possession, once acquired, may be continued solo animo. Mackenzie's Law of Scotland, 111.

* Boston Mill Corporation v. Bullfinch, 6 Mass. R. 229.

5 Jackson v. Warford, 7 Wend. (N. Y.) R. 62; Poignard v. Smith, 6 Pick. (Mass.), R. 172; Alden v. Gilmore, 1 Shep. (Me.), R. 178; Blood v. Wood, 1 Met. (Mass."), R. 528. [When an island, which was subject to be overflowed, and to whose enjoyment no inclosure was necessary, was used by the defendant for pasturage whenever it was safe to use it, and this use was continuous, whenever it was safe, for twenty years, it was held to be such a possession as would bar any other claimant, though, as there had been no actual settlement upon the land, the statute of limitations of Kentucky, of seven years, would not apply. Webbs v. Hynes, 9 B. Mon. (Ky.), 388. So the entering upon, ditching, and making roads, in a cypress swamp, for the purpose of getting shingles therein, and cutting down trees and making shingles therefrom, constitute an adverse possession. Tredwell v. Reddick, 1 Ired. (N. C.), 56. And so, also, do the keeping up fish-traps in a stream not navigable, erecting and repairing dams across it, and using it every year, during the entire fishing season, for the purpose of catching fish.

§ 392. The occupation must, in fact, be visible and notorious, inasmuch as the statute, as has been heretofore several times stated, proceeds upon the ground that there has been an acquiescence, on the part of the owner of the land; - a ground of supposition which can never exist, if an occupation be so clandestinely taken as not to afford notice of the same. It is, therefore, incumbent on the person claiming land by virtue of possession, to show an actual occupation and appropriation of what he so claims, within some defined boundaries. One point, says Shaw, Ch. J., seems to be well settled, which is, that very strong acts of exclusive possession, such as building, inclosing, or cultivating, and that for a long time, and openly and notoriously, are necessary, in order to constitute an actual ouster of the true

Williams v. Buchanan, 1 Ired. (N. C.), 535. But see Jackson v. Lewis, Cheves (S. C.), 259. The entering upon uninclosed flats, when covered by the tide, and sailing over them with a boat or vessel, for the ordinary purposes of navigation, is not such an open, notorious, exclusive and adverse possession as is necessary to constitute a disseisin. Drake v. Curtis, 1 Cush. (Mass.), 395. But the entering upon them and filling them up, or building a wharf and using the flats adjoining for laying vessels at the same, if the use be exclusive, would, it seems, constitute such a possession. Wheeler v. Stone et al., 1 Cush. (Mass.), 313. An entry upon a lot with a view of taking possession of it under a claim of title and marking the lines of it by spotting the trees around it, is a sufficient possession of it against one who can show no right of entry; although without an actual inclosure, it is not such an adverse possession, as against the real owner, as to bar his right under the statute of limitations. Woods v. Banks, 14 N. H. 101. The "Betterment Act," of Maine, so far alters the common law, that a wood-lot, constituting part of a farm, may be subject to a disseisin by the occupant of the farm if used openly and notoriously for the purpose of cutting fuel and getting house-bote therefrom. Tilton v. Hunter, 11 Shep. (Me.), 29. But yearly, for a few weeks at a time, getting rails and other timber from land, though only valuable for timber, does not constitute an adverse possession. Bartlett v. Simmons, 4 Jones (N. C.), Law, 295. Nor does cutting logs, for four years, by the owner of a saw-mill, from an uninclosed pine lot, for the mill, making roads for hauling the logs, and for several years more cutting light-wood and fire-wood. Watts v. Griswold, 20 Geo. 732. The plaintiffs and defendants were owners of adjacent parcels of land. The wall of the building erected upon the land of the former was some inches from the dividing line, the interval being used by the occupants as a drain and passage-way until within ten years of the commencement of the suit, when its outlet was closed by them. The foundation of the building on the defendants' land extended underground the whole width of the strip to the foundation of the plaintiffs'; the easterly wall of the former premises also extended across the inner end of the passage-way, and, as well as the westerly wall, which, at some seven feet above the ground, was carried over the outlet of the drain, and the roof, which extended over it, abutted against the wall of the plaintiffs' building. Held, that these facts did not constitute an adverse possession of the strip in question, on the part of the defendants. Miller v. Platt, 5 Duer (N. Y.), 272.]

owner, who has no notice of such acts. As was remarked by Mr. Justice Washington, "If the right of one who enters, or retains possession, by wrong, can never extend beyond the limits of the particular spot to which his occupation is confined, there would exist no other to circumscribe his claim."2 In the language of the Supreme Court of New York, " Adverse possession must be marked by definite boundaries, and be regularly continued down, to render it availing."3 The principle that a wrongful possession, however visible and notorious it may be, cannot be extended beyond visible and definite bounds, was applied, in the State of New Hampshire, in a case where R. entered upon a tract of land upon the east side of a river, claiming the whole, previously to the entry of J. on the opposite side. The naked possession of R., it was held by the court, though accompanied by a claim to the land on both sides, did not, in law, amount to a possession of the land west of the river. The possession claimed, in this case, to be extended to the west of the river, was so completely secret, that it existed only in the mind and imagination of the actual occupant of the land on the east side of the river. A continued residence on the land is not, however, necessary; it being sufficient that the land has been inclosed, and used in such a manner as to give publicity to the possession.5 Making improvements, or receiving the rents for a considerable length of time, would be sufficient, without

1 Blood v. Wood, 1 Met. (Mass.), R. 528.

2 Potts v. Gilbert, 3 Wash. (Cir. Co.), R. 475. See also, Hall v. Powell, 4 Serg. & Rawle (Penn.), R. 456; Munshower v. Patten, 10 id. 334; Mickle v. Lucas, id. 293; Brandt v. Ogden, 1 Johns (N. Y.), R. 156; Hapgood v. Burt, 4 Vt. R. 155; Wood v. Grundy, 3 H. & Johns. (Md.), R. 13.

8 Doe v. Campbell, 10 Johns. (N. Y.), R. 477.

4 Riley v. Jameson, 3 N. Hamp. R. 23. [And see also, Bishop v. Lee, 3 Barr (Penn.), 214.] But one is not estopped from setting up a title by adverse possession in a lot of land extending beyond the thread of the river, acquired subsequently to his taking a deed bounded by the river. Kinsell v. Daggett, 2 Fairf. (Me.), R. 309.

5 Johnson v. Irvine, 3 Serg. & Rawle (Penn.), R. 291; Jackson v. Howe, 14 Johns. (N. Y.), R. 405; Doe v. Thompson, 5 Cowen (N. Y.), R. 371; Doe v. Campbell, 10 Johns. (N. Y.), R. 475; Gonzalus v. Hoover, 6 Serg. & Rawle (Penn.), R. 291; Farley v. Lennox, 8. id. 392; Davidson v. Beatty, 3 Harr. & McHen. (Md.), R. 595; Smith v. Middletown, 1 id. 521; Brown v. Porter, 10 Mass. R. 93; Kennebec Purchase v. Springer, 4 id. 416; Barr v. Gratz, 4 Wheat. (U. S.), R. 213; Hawke v. Senseman, 6 Serg. & Rawle (Penn.), R. 21; Miller v. Shaw, id. 129. An open visible possession of fifty years, and this known to those who had the legal title, without any attempt to assert it, was held to be conclusive evidence of disseisin. Boston Mill Dam Corporation v. Bullfinch, 6 Mass. R. 229.

residence.1 In the case of a dwelling-house in a city, the possession of it continues, so as to give the possessor the benefit of the statute of limitations, although the house may not have been occupied all the time by himself, or by a succession of tenants under him, without intermission; and direct proof of occupancy during the whole period is not necessary.2

§ 393. The occupation of land up to a fence on each side of a town lot is incontestably such a possession, as, if continued, will, after the expiration of the time prescribed by the statute, bar the right of entry of him occupying on the other side of the fences, whether the fence be on the right line or not. An occupation amounting to a possession, may be assumed by the protruding eaves of the roof of a building. Thus, if a person erect a dwelling-house near the line of his land, with eaves, not far enough from the line of his land to allow for eaves-droppings on his own land, it will be regarded as an appropriation of the land directly beneath the eaves, and, as such, a possession thereof; and, if this be prior to any cultivation, or other actual use of the adjacent land, it is a prior occupation and possession. If the owner of the adjacent land afterwards cultivates the land quite up to the line of the building, and under its eaves, it cannot be regarded as a disturbance or interruption of the possession already taken by the owner of the building, because it is not inconsistent with the only use which he has had occasion to make, and has been actually making, of the land, by his eaves. So, on the other hand, if a conterminous proprietor incloses, or otherwise uses, land, up to a certain line, which he claims as his boundary line, this will be regarded as a prior occupation and possession up to that line, as against the other

1 Cummings v. Wyman, 10 Mass. R. 464. Where a person, without title, took possession of land which was under mortgage, and built on parts of it a carpenter's shop and blacksmith's shop, and the tenants of the carpenter's shop occasionally used parts of the lot adjacent to their shop to spread their boards on, and the tenants of the blacksmith's shop used other parts of the lot to run carriages on, and put tires on wheels, it was held, that this was a disseisin of the mortgagee only for the parts of the land covered by the shops. Poignard v. Smith, 8 Pick. (Mass.), R. 272.

2 Mackentile v. Savoy, 17 Serg. & Rawle (Penn.), R. 104.

3 Brown v. McKinney, 9 Whart. (Penn.), R. 567; Burrell v. Burrell, 11 Mass. R. 296; [Clark v. Tabor, 2 Wms. (Vt.), 222].

[And see Mims v. Wetherbee, 2 Strobh. (S. C.), 184; post, § 415, sub finem; Perkins v. Dunham, 3 Strobh. (S. C.), 224.]