Sec. 68 Title by-Character of title acquired. One who has acquired title by adverse possession may assert it affiirmatively. Miller v. Cramer, 48 S. C. 282 (26 S. E. Rep. 657); Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470 (27 S. E. Rep. 255); Duren v. Kee, 50 S. C. 444 (27 S. E. Rep. 875). It will support an action to quiet title. Harms v. Kransz, 167 Ill. 421 (47 N. E. Rep. 746); Vier v. City of Detroit, 111 Mich. 646 (70 N. W. Rep. 139). It will sustain an action for trespass, Coppage v. Griffith, Ky.

(40 S. W. Rep. 908); or support ejectment against one subsequently obtaining possession. Donahue v. Illinois Cent. R. Co., 165 Ill. 640 (46 N. E. Rep. 714). When the statute of limitations has run in favor of one holding adverse possession, no subsequent acknowledgment of the former owner's title, except by deed sufficient to pass title to land, will divest the title acquired by adverse possession. Sage v. Rudnick, 67 Minn. 362 (69 N. W. Rep. 1096).

Sec. 69. Title by-What property may be acquired. Title acquired by adverse possession may itself in turn be destroyed by adverse possession. Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470 (27 S. E. Rep. 255). A private party cannot hold adverse possession of lands, while such lands are a portion of the "Indian country," and the right of occupancy in the Indians has not been terminated by the United States. Kreuger v. Schultz, 6 N. Dak. 310 (70 N. W. Rep. 269). After restrictions on the alienation of lands patented by incompetent Wyandotte Indians were removed by the treaty of 1867 (15 U. S. Stat. 517) title thereto might be gained by occupancy under claim of ownership; and persons who were in the actual possession of the lands at the time the treaty took effect under void deeds from an incompetent Indian acquired title when they continued to hold such possession without interruption, openly, adversely, and under claim of title for fifteen years. Schrimpcher v. Stockton, 58 Kan. 758 (51 Pac. Rep. 276). Title to a building may be acquired by adverse possession, although another has the title to the supporting land. Fairbanks v. San Francisco & N. P. Ry. Co., 115 Cal. 579 (47 Pac. Rep. 450). The court say: "For the purposes of adverse possession and the invocation of the stat

ute of limitations, there may be cleavage of corporeal real estate horizontally as well as vertically. This appears from the cases relating to mineral strata and tunnels. Caldwell v. Copeland, 37 Pa. St. 427 (78 Am. Dec. 436); Lillibridge v. Coal Co., 143 Pa. St. 293, 299 (22 Atl. Rep. 1035; 24 Am. St. Rep. 544; 13 L. R. A. 627); Powell v. Lantzy, 173 Pa. St. 543 (34 Atl. Rep. 450); Bevan v. Cement Co., 3 Reports 47." Title to the surface estate may be acquired by adverse possession where the original owner of the entire estate has conducted such mining operations thereon as amount to a severance of the minerals. Delaware & H. C. Co. v. Hughes, 183 Pa. St. 66 (38 Atl. Rep. 568; 63 Am. St. Rep. 743; 38 L. R. A. 826). The use by the public of the right of way or depot grounds of a railroad shall not ripen into title, except the use be for a connected street across such right of way or ground. Ind. Laws 1899, p. 477.

Sec. 70. Title by-Elements necessary-Particular cases. To confer title by adverse possession, the possession must be actual, open, notorious, exclusive, hostile and continuous for the prescriptive period, and the burden of proof is on one claiming such a title to prove that his possession was of this character. Beasley v. Howell, 117 Ala. 499 (22 So. Rep. 989); McSpadden v. Starrs Mountain Iron Co., Tenn. (42 S. W. Rep. 497). The continuity of the possession must be clearly proven; it is not sufficient to raise it upon a mere presumption. Woods v. Hull, 90 Tex. 228 (38 S. W. Rep. 165). A claim of title by adverse possession cannot be sustained by one who has admitted by judicial proceedings, the possession of the party against whom he claims, within the prescriptive period. Day v. Philbrook, 89 Me. 462 (36 Atl. Rep. 991). In Nebraska, the claim of ownership of one in adverse possession need not be well founded in law or in fact, it need not be under a bona fide belief that it is well founded, or need it be under color of title. Oldig v. Fisk, 53 Neb. 156 (73 N. W. Rep. 661). Title by adverse possession is established by evidence showing that the claimant during the prescriptive period has visited the land almost every Sunday, mowed it every year, pastured his horses on it, took his friends out to see it, dug a well, constructed fences

and improvements thereon, and surveyed and established corners soon after his first claim of title. Sullivan v. Eddy, 164 Ill. 391 (45 N. E. Rep. 837). Title by possession cannot be proved simply by recitals in the deeds of the claimant's grantors. Hudgins v. Simons, 94 Va. 659 (27 S. E. Rep. 606). Particular evidence held sufficient to show adverse possession for twenty years. Smith v. Keyser, 115 Ala. 455 (22 So. Rep. 149). Particular case in which title is held to have been acquired by adverse possession. Libbey v. Young, 103 Ia. 258 (70 N. W. Rep. 520). Particular evidence held insufficient to show title by adverse possession. Beard v. Utley, Tenn.

(39 S. W. Rep. 735). Particular evidence held insufficient to show uninterrupted adverse possession for five years. Lacoste v. Eastland, 117 Cal. 673 (49 Pac. Rep. 1046). For particular fact case concerning the acquisition of title by adverse possession, see Metz v. Metz, 48 S. C. 472 (26 S. E. Rep. 787).

Sec. 71. Title by Occupancy required Rule where lands are barren and unproductive. Actual possession by the claimant is necessary. Evidence that he appointed an agent to look after the land, who, on several occasions took parties to see it, walked over it and tried to sell it, does not show actual possession by the claimant. John Henry Shoe Co. v. Williamson, 64 Ark. 100 (40 S. W. Rep. 703). Merely going in the winter time on land enclosed and used as a pasture by another, and cutting and taking away wood, failing to do even this some years, is not a continuous or exclusive possession. Harms v. Kransz, 167 Ill. 421 (47 N. E. Rep. 746). The use of land by cutting and hauling fire wood, saw timber, and cutting and hauling fence rails from it and cleaning up the same, do not constitute actual possession, but are merely acts tending to show claim of ownership. Carter v. Hornback, 139 Mo. 238 (40 S. W. Rep. 893). Under the Tennessee statute it is held that to produce a bar by possession where there are interfering laps under conveyances, there must be an actual possession of some part of the land in dispute. O'Dell v. Swaggerty,

S. W. Rep. 175).

Tenn.

(42

Adverse possession of barren lands not available for any

productive use, may be shown by recording the deed under which the claimant asserts title, removing valuable timber, surveying the land and establishing boundaries, constructing fences and buildings, paying taxes, going upon the land at intervals and asserting ownership, and employing agents in the locality to look after it without proof of actual occupation. Worthley v. Burbanks, 148 Ind. 534 (45 N. E. Rep. 779). The court say: "The important inquiry upon the facts found, is as to whether the appellant occupied or possessed, under the rule in adverse possession, any part of the land for the required term. Appellees insist that actual occupancy is necessary, while appellant urges that occupancy is necessary only where it is possible with some return from the occupancy or use, and is not required if the land is not susceptible of some remunerative use. That there was not an actual occupancy for 20 years by or on behalf of the appellant and her grantors is not in doubt, nor is it questionable that the lands were not available for any productive use. The precise inquiry, therefore, is, what is meant by possession,' as applied to lands of the character of those in question here? It is manifest that there can be no absolutely unvarying rule with reference to every class of real estate, and that the required occupancy of or dominion over a section of desert lands, or of a mining camp, a non-navigable lake, a prairie, a forest, a fertile farm in a high state of cultivation, or a town lot, would not answer as to a lot in the business center of a populous and thrifty city. As said in Ewing v. Burnet, 11 Pet. 41, '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.' And, as said in the early case of Robinson v. Swett, 3 Me. 816, where it was wild and uncultivated land, the jury were not to expect the same evidence of occupancy which a cultivated farm would present to them.' In this connection it is said in 2 Wood, Lim. (2 Ed.) § 267: 'The kind of possession which will be sufficient must depend largely upon the character of the land, the locality, and the purposes to which it can be put. And where the land is so situated as not to admit of any permanent useful improvement, neither residence, cultivation, nor actual occupa

* * *

tion are necessary, where the continued claim to the premises is evidenced by notorious acts of ownership, such as a person would not exercise over lands which he did not own. It is not necessary that the occupation should be such that a mere stranger, passing the land, would know that some one was asserting title to a dominion over it. It is not necessary that the land be cleared or fenced, or that any building be put upon it. The possession of land cannot be more than the exercise of exclusive dominion over it.' Numerous cases are cited by the author which support the text. See Ewing v. Burnet, 11 Pet. 41; Draper v. Shoot, 25 Mo. 197 (69 Am. Dec. 462); Ford v. Wilson, 35 Miss. 490 (72 Am. Dec. 137); Morrison v. Kelly, 22 Ill. 610 (74 Am. Dec. 169); Royall v. Lisle's Lessee, 15 Ga. 545 (60 Am. Dec. 712); Eddy v. Gage, 147 Ill. 162 (35 N. E. Rep. 347); Tucker v. Shaw, 158 Ill. 326 (41 N. E. Rep. 914); Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. Rep. 983); Twohig v. Leamer, 48 Neb. 247 (67 N. W. Rep. 152); Mooney v. Cooledge, 30 Ark. 640 ; Normant v. Eureka Co., 98 Ala. 181 (12 So. Rep. 454; 39 Am. St. Rep. 45); Bowen v. Guild, 130 Mass. 121; Booth v, Small, 25 Iowa 177; Brett v. Farr, 66 Iowa, 684 (24 N. W. Rep. 275); Murphy v. Doyle, 37 Minn. 113 (33 N. W. Rep. 220); Cooper v. Morris, 48 N. J. L. 607 (7 Atl. Rep. 427); Stockton v. Geissler, 43 Kan. 612 (23 Pac. Rep. 619); Foulke v. Bond, 41 N. J. L. 527."

Sec. 72. Title by-Payment of taxes. It is proper to prove the payment of taxes to sustain a claim of adverse possession. Pasley v. Richardson, 119 N. C. 449 (26 S. E. Rep. 32). Payment of taxes by one in possession after they have been once paid by the owner, is not a compliance with Cal. Code Civ. Proc. § 325, making payment of taxes for five years a necessary element of title by adverse possession. Carpenter v. Lewis, 119 Cal. 18 (50 Pac. Rep. 925). A claim of title by adverse possession on account of five years' payment of taxes, under claim and color of title under Mills' Ann. Colo. Stat. § 2923,cannot be made as to land which was not assessed for taxation. Laughlin v. City of Denver, 24 Colo. 255 (50 Pac. Rep. 917). Prior to May 21, 1881, adverse possession could be established under the laws of Idaho without proving pay