Sec. 63. As to what constitutes adverse possession -Possession by enclosure. A fence erected in pursuance of an agreement between adjoining owners that if the correct line is afterwards found the fence would be placed upon it, does not constitute a basis for the claim of adverse possession. Lowe v. Cunningham, Tenn. (39 S. W. Rep. 1052). One who merely encloses the land of his neighbor by the erection of a fence upon an erroneous boundary line, which he believes to be the true line, does not hold possession of such land adversely until he makes a claim of possession of that nature. Rasdell v. Shumway, 58 Kan. 818 (51 Pac. Rep. 285). Upon this subject the supreme court of Alabama say: "It is also well settled, that if one of two adjacent landowners extend his fence so as to embrace within his enclosure lands belonging to his neighbor, in ignorance of the true boundary line between them, and with no intention of claiming such extended area, but intending to claim adversely only to the real and true boundary line, wherever it may be, such possession will not be adverse or hostile to the true owner. But if the fence is believed to be the true line, and the claim of ownership is to the fence, even though the established division is erroneous, a different rule will apply, as has been held; for, in such case, there is a clear intention to claim to the fence as the true line, and the possession does not originate in an admitted possibility of a mistake." Taylor v. Fomby, 116 Ala. 621 (22 So. Rep. 910).

Possession by inclosure to be adverse, must be such as to be exclusive possession, a real and substantial inclosure, an actual occupancy which is definite, positive and notorious; and a partial inclosure of land, capable of total inclosure leaving part of its boundary open, is not sufficient. Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470 (27 S. E. Rep. 255). The court say: "Let us look at the character of pos

session in this case. There was no building, cultivation, or improvement upon this land. The only basis for adversary possession is an inclosure by a fence. Under the evidence the question presents itself whether this fence was such as the law contemplates to give adversary possession. Here we must first note that, as it defeats the true title, adversary possession must be taken strictly, and the facts to sustain it proven

clearly. Irvine v. McRee, 5 Humph. 554 (42 Am. Dec. 468); Hale v. Glidden, 10 N. H. 402. The evidence shows that in 1843 or 1844 a fence, composed perhaps of slabs, inclosed two sides of these lots, but not the whole area. Certainly one side was left open. Our cases hold that adverse possession must be 'exclusive; that is, shut the adverse claimant out. In Jackson v. Shoonmaker, 2 Johns. 230, Chief Justice Kent said that a possession fence, by felling trees and lapping them one upon the other around the land, was too loose' a mode of taking possession to be considered adverse possession. He said: 'There must be a real and substantial inclosure, an actual occupancy, a pessio pedis, which is definite, positive, and notorious, to constitute an adverse possession, when that is the only defense to countervail a legal title.' Same in Coburn v. Hollis, 3 Metc. (Mass.) 125. In Hale v. Glidden, 10 N. H. 397, it was held that an inclosure by a brush fence and cutting wood from a wood lot, where a person had no color of title, is insufficient; the possession must be actual, permanent, and exclusive, marked by definite boundaries. In Armstrong v. Risteau, 5 Md. 256 (59 Am. Dec. 115), it was held that fences on three sides of an oblong or square piece of land are not such an inclosure as would constitute adverse possession where such inclosure is necessary. Şee Busw. Lim,. § 247. Possession to be adverse must be actual, continued, visible, notorious, distinct, and hostile. It must be such that the owner may be presumed to have notice of it and its extent. It must be open, visible, and exclusive. Core v. Faupel, 24 W. Va. 238, point 5. It has been several times held that protection of the land by substantial inclosure sufficient to turn stock is necessary, and that it is not sufficient where it is insufficient to turn stock. Note to Plume v. Seward, 4 Cal. 94 (60 Am. Dec. 604). A poor fence around a part of this small area, leaving it open, with no building or cultivation, would not be distinct, hostile, possession, excluding the owner, giving him warning of adverse claim, but would rather indicate an abandonment of a once-intended claim."

Sec. 64. Extent of possession without color of title. One in possession of land without paper title has adverse possession only to the extent of his enclosure or actual improve

ment. Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470 (27 S. E. Rep. 255); Carter v. Hornback, 139 Mo. 238 (40 S. W. Rep. 893). The possession of one entering as a trespasser is confined to the land actually occupied by him, and he cannot claim title by adverse possession to wild and uninclosed land adjoining that actually occupied and used by him, from the mere fact that he cut natural hay thereon, and let his stock run over and pasture upon it. Sage v. Larson, 69 Minn. 122 (71 N. W. Rep. 923). The adverse right derived from mere possession is limited to that which has been possessed. The right asserted by a railroad company to build, maintain, and use a bridge over a highway for the passage of trains is consistent with the right asserted by other persons to possess the land, subject to the public use, and to lay pipes beneath the surface of the highway. The former claim of right is not inherently adverse to the latter. Pennsylvania R. Co. v. Breckenridge, 60 N. J. L. 583 (38 Atl. Rep. 740). One holding adverse possession of shore land is confined to his actual occupancy on the shore, unless by notorious acts of ownership, in so far as he may be able to exercise them, he furnishes evidence of his intention to claim and hold to the middle of the stream. Stanberry v. Mallory, Ky. (39 S. W. Rep. 495). Where the operations of a coal mining company owning a tract of land have been such as to create a severance of the mineral estate from the surface estate, one having full knowledge of such operations who subsequently holds adverse possession of a portion of the surface estate of such lands for the prescriptive period does not acquire any title to the minerals beneath such portion, although they have not been actually removed by the company. Delaware & H. Canal Co. v. Hughes, 183 Pa. St. 66 (38 Atl. Rep. 568; 63 Am. St. Rep. 743; 38 L. R. A. 826). For particular case determining the extent of possession, where the possession was held by a tenant of the claimant, see Zundel v. Baldwin, 114 Ala. 328 (21 So. Rep. 420).

Sec. 65. Extent of possession under color of titleConflicting patents. Adverse possession of a portion of a tract of land under color of title gives constructive possession of the entire tract. Worthley v. Burbanks, 146 Ind. 534 (45

N. E. Rep. 779); Smith v. Keyser, 115 Ala. 455 (22 So. Rep. 149). Possession of a part will be construed to extend to the whole congressional subdivision to which the occupant holds color of title or makes claim of right. Libbey v. Young, 103 Ia. 258 (72 N. W. Rep. 520). The express description in a deed of realty introduced as color of title will not be extended beyond its terms because of a belief by the holder under it that it covered land not embraced in that description, nor because of any expressed intention in the mind of the grantor that it should cover land not described in the deed itself, there being no suggestion of mistake in the drawing of it. Williamson v. Tison, 99 Ga. 791 (26 S. E. Rep. 766). Where a party holds a large tract of land under patent from the state, which tract is divided into a line of narrow surveys running across it, held by junior patentees, who have acquired good title to said narrow surveys, and the holder of the senior patent takes possession of the land within the bounds of his patent on the east side of said line of narrow surveys, such possession will not be limited by the boundaries of said narrow surveys but will extend to the exterior bounds of his patent on the west side of said narrow surveys. Where there is an interlock between the land held under said elder patent and a junior patent, and the junior patentee is in possession under his patent, but outside of the interlock, and the senior patentee is in possession, by actual improvement, of any portion of his land under said senior patent, the junior patentee will be limited by the boundaries of the elder patent. Ilsley v. Wilson, 42 W. Va. 757 (26 S. E. Rep. 551).

tutes.

Sec. 66. Color of title-Necessity of-What constiAdverse possession need not be based upon color of title. Vier v. City of Detroit, 111 Mich. 646 (70 N. W. Rep. 139); Ward v. Nestell, 113 Mich. 185 (71 N. W. Rep. 593). A void deed may constitute color of title. Randolph v. Casey, 43 W. Va. 289 (27 S. E. Rep. (231). Citing, Welborn v. Anderson, 37 Miss. 155; Irey v. Markey, 132 Ind. 546 (32 N. E. Rep. 309). A tax deed, void because based on a sale made at the wrong place and the wrong time, constitutes color of title where it is executed by the proper officer and gives a correct description of the property. Bennet v. North Colo. Springs

L. & Imp. Co., 23 Colo. 470 (48 Pac. Rep. 812). A deed cannot constitute color of title for land which it does not purport to convey. Laughlin v. City of Denver, 24 Colo. 255 (50 Pac. Rep. 917). Where a wife takes a quitclaim deed of land from her husband, whose only interest therein she knows to be under a contract of purchase which she afterwards forfeits by failure to comply with its terms, such instrument does not constitute color of title. Laraway v. Zenor, 100 Ia. 181 (69 N. W. Rep. 416). Where an administrator arranged with a third person to purchase at his sale for the benefit of such administrator and executed a deed to him and he in turn deeded the land to the administrator, it is held that the last deed gave to the administrator color of title. McNeill v. Fuller, 121 N. C. 209 (28 S. E. Rep. 299). Particular deed held sufficient to constitute color of title. Taylor v. Smith, 121 N. C. 76 (28 S. E. Rep. 295).

Sec. 67. Title by-General principles-Who may acquire. In South Carolina it is held that adverse possession of land for twenty years raises the presumption of a grant. Miller v. Cramer, 48 S. C. 282 (26 S. E. Rep. 657). The presumption is that the possession is in subordination to the actual title and one who relies upon a title by twenty years possession must show that such possession was held by the possessor in open hostility to the rights of the true owner. Heller v. Cohen, 154 N. Y. 299 (48 N. E. Rep. 527). Possession and use of, and payment of taxes upon, land for six years, followed by fifteen years possession, by a purchaser at an execution sale of it, as the property of the first possessor is held sufficient to create a presumption of grant to the first possessor. Hasson v. Klee, 181 Pa. St. 117 (37 Atl. Rep. 184). Title to land condemned for the right of way of a railroad, may be reacquired by the original owner by adverse possession. Donahue v. Illinois Cent. R. Co., 165 Ill. 640 (46 N. E. Rep. 714). In Kansas it is held that the adverse claimant must be a resident in order for the statute of limitations to run; it does not run in favor of nonresidents even if in possession by tenants or agents. Davis v. Threlkeld, 58 Kan. 763 (51 Pac. Rep. 226).

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