BELCHER, C., and TEMPLE, C., concurred.

The COURT. For the reason given in the foregoing opinion, the judgment and order are reversed and a new trial granted.

Adverse Possession.”

Notoriety Essential to. To constitutes an adverse possession such as will bar the title of the legal owner by lapse of time, it must not only be aotual, but also visible, continuous, notorious, distinct, and hostile, and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. This rule is so well settled as to scarcely need the citation of authority to support it: Evans v. Templeton, 69 Tex. 375; 5 Am. St. Rep. 71; Denham v. Holeman, 26 Ga. 182; 71 Am. Dec. 198; Worcester v. Lord, 56 Me. 265; 96 Am. Dec. 456.

The element of notorious hostility to the title of the true owner is an indispensable ingredient of adverse possession. This notorious, hostile posses sion cannot be inferred except from proof of an express or implied denial of the owner's title, accompanied with such acts or declarations on the part of the holder as are sufficient to put the true owner on notice that the land is claimed and held in hostility to his rights: Ringo v. Woodruff, 43 Ark. 469; Haffendorfer v. Gault, 84 Ky. 124; McDonald v. Fox, 20 Nev. 364; Hicklin v. McClear, 18 Or. 126; Evans v. Templeton, 69 Tex. 375; 5 Am. St. Rep. 71; Chicago etc. R'y Co. v. Galt, 133 Ill. 657; Mauldin v. Cox, 67 Cal. 387; Thompson v. Pioche, 44 Cal. 508; Shaw v. Schoonover, 130 Ill. 448; Denham v. Holeman, 26 Ga. 182; 71 Am. Dec. 198; Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100; Sparrow v. Hovey, 44 Mich. 63; Russell v. Davis, 38 Conn. 562; Grant v. Fowler, 39 N. H. 101; Yelverton v. Steele, 40 Mich. 538; Satterwhite v. Rosser, 61 Tex. 166; Bracken v. Jones, 63 Tex. 184; Creekmur v. Creekmur, 75 Va. 430. "Notoriety of the adverse claim under which possession is held is a necessary constituent of title by adverse possession, and therefore the occupation or possession must be of that nature that the real owner is presumed to have known that there was a possession adverse to his title, under which it was intended to make title against him. A party relying on title from such a source must prove possession in himself or in those under whom he claims, of such a character as is calculated to inform the true owner of the nature and purpose of the possession to which the lands are subjected": Foulke v. Bond, 41 N. J. L. 527, 545.

The Claim of Title, which is an indispensable element of adverse possession, has in it nothing of stealthiness, nor is it elastic or flexible. There must be publicity, continuity, and good faith in its assertion, leaving no room for doubt by the person against whom it is asserted that his title is disputed, and a hostile title asserted: Potts v. Coleman, 67 Ala. 221; Worcester v. Lord, 56 Me. 265; 96 Am. Dec. 456; Denham v. Holeman, 26 Ga. 182; 71 Am. Dec. 198.

The possession under which prescription is founded must be public and unequivocal, and the evidence must establish that the possessor claimed the

REFERENCE TO MONOGRAPHIC NOTES.

Adverse possession of part when treated as of whole: 12 Am. Dec. 357-359.

Adverse possession, mistake, and ignorance as to boundary lines, whether affects question of: 24 Am. St. Rep. 388-391.

Adverse possession of highways, streets, and public parks, prescriptive title when acquired by: 14 Am. St. Rep. 278-282.

property as his, and exercised some rights as an owner: Simon v. Richard, 42 La. Ann. 842. No particular act or series of acts are necessary to be done on the land, in order that the possession may be notorious, but any visible acts which clearly demonstrate an intention to claim ownership and posses sion will be sufficient to establish the claim of adverse possession: Ellicott v. Pearl, 10 Pet. 412; Ewing v. Burnet, 11 Pet. 41; Ford v. Wilson, 35 Miss. 90; 72 Am. Dec. 137; Royal v. Lisle, 15 Ga. 545; 60 Am. Dec. 712; Langworthy v. Myers, 4 Iowa, 18; Bates v. Norcross, 14 Pick. 224. Such claim of title may be made out by visible acts, without any assertions by word of mouth: Barnes v. Light, 116 N. Y. 34.

A Clandestine Use of the premises, so secret in character that the owner is not likely to know of it, will not constitute a disseisin. On the other hand, as before shown, the occupation must be so open and public that the owner may be presumed to have notice of it and of its extent: Denham v. Holeman, 26 Ga. 182; 71 Am. Dec. 198; Cook v. Babcock, 11 Cush. 206; Lucas v. Daniels, 34 Ala. 188.

Acts Equivalent to Notice. Some acts are so notorious in their character that they of themselves constitute notice to the owner of the adverse claim, and are sufficient evidence that the holding is adverse. Such are the maintenance of fences and other substantial inclosures: Taliaferro v. Butler, 77 Tex. 578; Tourtelotte v. Pearce, 27 Neb. 57; Barnes v. Light, 116 N. Y. 34; Russell v. Davis, 38 Conn. 562; Cutter v. Cambridge, 6 Allen, 20; or the erection of buildings on the land; Poignard v. Smith, 6 Pick. 172; Erwin v. Olmstead, 7 Cow. 229. The inclosure of the land must be substantial, to give notice of and constitute an adverse possession. Mere surveying a line around land, lopping trees to indicate the line, or building a brush fence in. sufficient to turn stock, will not be sufficient: Hutton v. Schumaker, 21 Cal453; Borel v. Rollins, 30 Cal. 409; Kennebeck Purchase v. Springer, 4 Mass. 416; 3 Am. Dec. 227; O'Hara v. Richardson, 46 Pa. St. 285; Jackson v. Schoonmaker, 2 Johns. 230.

There are many cases, however, where even an inclosure is not necessary to an adverse claim. Notice may then be presumed from other acts of notoriety, indicating an intent to claim ownership. These cases occur where the property is of such character, and is so circumstanced, that there can be nei ther actual permanent occupation nor improvement. The disseisin may then be evidenced by any act of public dominion which is possible with property of that kind: Langworthy v. Myers, 4 Iowa, 18; Ford v. Wilson, 35 Miss. 490; 72 Am. Dec. 137; Ewing v. Burnet, 11 Pet. 41; Ellicott v. Pearl, 10 Pet. 412; Cooper v. Morris, 48 N. J. L. 607; Draper v. Shoot, 25 Mo. 203.

To constitute adverse possession, the use made of the land must be suited to its nature, adaptability, and locality; all that the law requires is, that the possession, or rather the acts of dominion by which it is sought to be proved, shall be of such sharacter as may reasonably be expected to inform the true owner of the fact of possession and claim of adverse title: Woods v. Monterallo ste. Cc., 84 Ala. 560; 5 Am. St. Rep. 393; Bell v. Denson, 56 Ala. 444. J such case an adverse user is such use of the property as the owner himself would make, asking no permission, and disregarding all other claims to it, so far as they conflict with this use: Blanchard v. Moulton, 63 Me. 434. The rule as to the notoriety of the acts necessary to evidence an adverse holding is well stated in Murphy v. Doyle, 37 Minn. 113-115, where it was zaid: "As to what will constitute adverse possession, such as will work a Asseisin of the true owner, is a subject which has afforded a wide field for indicial discussion and decision. All the authorities agree that the posses

sion must be actual, visible, and exclusive; but as to what will constitute such a possession, or as to what shall be deemed the extent of it under a given state of facts, there has been some diversity of views. The doctrine of the supreme court of the United States is, that to constitute adverse possession there need not be a fence or a building; that it is sufficient if visible and notorious acts of ownership have been exercised over the premises for the time limited by statute: Ewing v. Burnet, 11 Pet. 41, 53. It is difficult to lay down a precise rule applicable to all cases, as much must depend upon the nature and situation of the property, and the uses to which it can be applied. For example, in the case of a farm, if the possession is open and notorious, comporting with the ordinary management of farms, it is not necessary that the whole farm be either improved or inclosed, at least where the unimproved part, as woodland, is subservient to and connected with that which is improved; and for the same reason, the rule requiring actual and visible occupancy will be more strictly construed in an old and populous country, where land is usually improved and inclosed, than in a new country recently settled, in which the land is only partially improved. Again, where the occupant enters under color of title through some deed or written instrument purporting to be a conveyance, he stands in a different position from a mere naked disseisor. He is presumed to have intended his entry to be coextensive with the description contained in his deed, although the actual improvements are only on a part of the tract. The general doctrine of the courts in the United States is, that where the occupant, or those under whom he claims, enters into possession under claim of title, founding such claim upon some written instrument as being a conveyance of the premises in question, and there has been continued occupation of some part of the land included in the conveyance, he or they will be deemed to have been in the adverse possession of the whole of such premises, if not in the adverse pos session of any one else."

Acts of Sufficient Notoriety. - Under the above rule, where a person claiming uninclosed land exercises acts of ownership over it, by the continued use of it for the purposes to which it is adapted, his possession will be regarded as actual and adverse, as where the land is uninclosed timber-land and the claimant cuts wood and timber for ordinary purposes during the period of his ownership: Clement v. Perry, 34 Iowa, 564; Brett v. Farr, 66 Iowa, 684; or cuts timber and hay from the land: Forey v. Bigelow, 56 Iowa, 381. A claimant of out-lots which he does not fence or cultivate may establish an adverse possession by cutting grass and timber, ditching, paying taxes, and openly claiming and using the land: Curtis v. Campbell, 54 Mich. 340. When the land is uninclosed and susceptible of cultivation, the cultivation of the land each year by the adverse claimant is sufficiently notorious to be notice to the true owner of the adverse claim: Hughes v. Anderson, 79 Ala. 209; Beecher v. Galvin, 71 Mich. 391; Richards v. Smith, 67 Tex. 610. The possession of an uncultivated piece of grazing land, and the pasturing stock upon it, under the care of herders, during the pasturing season of the year, though it is left unoccupied during the rest of the year, is sufficient to establish adverse possession: Webber v. Clarke, 74 Cal. 11. One who habitually uses the land for the pasturage of stock, confining his stock thereon, and excluding all others therefrom, the land being adapted to that purpose, is as much in the notorious possession of it as though he had it inclosed by a fence: Sheldon v. Mull, 67 Cal. 299-301; Wilson v. Atkinson, 77 Cal. 485, 486; 11 Am. St. Rep. 299. Long-continued acts of ownership, by cutting, thatching, and leasing the right to cut to others, exercised by the adverse claimant, is sufficient to establish

adverse possession of land covered by water: Roe v. Strong, 119 N. Y. 316. Of course, fencing the land, and a continued use of it as a pasture without residing on it, is sufficient evidence of an adverse claim: Cantagrelv. Von Lupin, 58 Tex. 570; and if the fences, together with natural barriers, turn stock, this is sufficient for the purpose of a notorious possession: Goodwin v. McDade, 75 Cal. 584. The continued use of a strip of land by a mill company as its road-bed, and the payment of taxes thereon without inclosing it, will consti. tute adverse possession: Daniels v. Gualala Mill Co., 77 Cal. 300. The inclosure of a public road or street, renting it, or any other act indicating a notorious claim of ownership, will create a title by adverse possession if con tinued for the statutory period; Sadtler v. Peabody Heights Co., 66 Md. 1. The contrary doctrine is maintained in Brooks v. Riding, 46 Ind. 15; and see note on this subject, Orr v. O'Brien, 14 Am. St. Rep. 278–281. The payment of taxes on land, together with other acts indicating a claim of and assertion of ownership adverse to the true owner, is sufficient to sustain a claim by adverse possession: Omaha etc. Co. v. Barrett, 31 Neb. 803; Brown v. Clark, 89 Cal. 196.

Acts not Sufficiently Notorious. On the other hand, it is well settled that the mere payment of taxes on land, unaccompanied with other acts indicating an adverse claim, is not of sufficient notoriety to put the true owner on notice, or to constitute adverse possession: Raymond v. Morrison, 59 Iowa, 371; Bear Valley Coal Co. v. Dewart, 95 Pa. St. 72; Malloy v. Bruden, 86 N. C. 251; Bradstreet v. Kinsella, 76 Mo. 63; Miller v. Long Island R. R. Co., 71 N. Y. 380. The payment of taxes on the land, with only an occasional act of ownership, is not evidence of an adverse holding sufficient to constitute a disseisin against the true owner: Wells v. Austin, 59 Vt. 157; Scott v. Mills, 49 Ark. 266; Brown v. Rose, 48 Iowa, 231. This is especially the case when the land is susceptible of a more strict and definite possession: Cook v. Farrah, 105 Mo. 492; Draper v. Shoot, 25 Mo. 203. Occasional entries upon land and the exercise of occasional acts of ownership, no matter how clearly they may indicate a purpose to claim title and exercise dominion over the land, do not constitute a notorious possession adequate to support a claim of title by prescription: Ruffin v. Overby, 105 N. C. 78; Aiken v. Ela, 62 N. H. 400; Miller v. Long Island R. R. Co., 71 N. Y. 380; Cox v. Ward, 107 N. C. 507; Richmond Iron Works v. Wadhams, 142 Mass. 569; Chicago etc. R'y Co. v. Galt, 133 Ill. 657; Foulke v. Bond, 41 N. J. L. 527. Different entries at different times, by different persons, between whom there is no privity, no connected claim of rightful holding, is but a succession of trespasses, and will not support a claim of adverse possession: Ross v. Goodwin, 88 Ala. 390. As was said in Olewine v. Messmore, 128 Pa. St. 470, although "adverse possession of land may be said to be founded in trespass, it must be a trespass constantly continued by acts on the premises. It must challenge the right to all the world; the claimant must keep his flag flying, and present a hostile front to all adverse pretentions." It follows, as was decided in the above case, that the acts of cutting firewood, making rails, or even making a clear. ing upon uninclosed land at different times, without following this up with inclosure, residence, or cultivation, will give no title by adverse possession. Occasional fugitive acts of occupancy on wild timber-land, such as cutting timber thereon to repair a dam on another tract, mowing an acre or two of marsh grass, or allowing cattle to graze thereon, will not constitute an adverse possession: St. Croix etc. Co. v. Ritchie, 78 Wis. 492. The same rule applies to occasional entries of all kinds; as for the purpose of making brick: Williams ▼. Wallace, 78 N. C. 354; or gathering grass or sand: Price v. Brown,

AM. ST. REP., VOL. XXVIII—11

101 N. Y. 669; or digging sand on the land and selling it: Parker v. Wallis, 60 Md. 15; 45 Am. Rep. 703. An annual or occasional entry for a short time for the purpose of cutting natural grass will not work a disseisin of the true owner: Bazille v. Murray, 40 Minn. 48; Roberts ▼. Baumgarten, 110 N. Y. 380. An occasional use of land in the customary way, for the partic ular purpose to which it is best suited, will not amount to an ouster of the real owner: Trustees of East Hampton v. Kirk, 68 N. Y. 459. When the land is half prairie and half timber, and might easily be inclosed and is fit for culti vation, the erection of temporary structures, pasturing of hogs, or cutting timber at different times under a claim of ownership, does not constitute an adverse holding: Cook v. Farrah, 105 Mo. 492. Such possession of land is merely subsidiary and incidental to a trespass, and if abandoned when that object is accomplished, although it may have been continued for some weeks or months, is not of sufficient notoriety to convey notice to the real owner or constitute an adverse possession: Austin v. Holt, 32 Wis. 478. The mere placing of rails on land, no further act being shown toward exclusive possession, will not constitute an adverse holding: Richards v. Smith, 67 Tex. 610. Breaking uninclosed land, sowing it to wheat, and harvesting the crop at intervals of fifteen years, without other acts of possession, is not evidence of an adverse holding: Robbins v. Moore, 129 Ill. 30. The occupant of a block of city land, on which he resides, cannot extend his occupancy and adverse possession to an unoccupied and unimproved lot adjoining, by paying taxes thereon and keeping trespassers off. In such case, "there must be an actual possession of the premises, the exercise of some visible notorious act, such as inclosing, cultivating, or otherwise improving the land," to constitute an adverse holding: Wilson v. McEwan, 7 Or. 87-107. This rule applies in all cases where a naked possession alone is relied upon as constituting title to land. In all such cases there must be an actual, notorious occupancy, and the possession of the adverse claimant cannot be extended by construction beyond such occupancy: Bracken v. Jones, 63 Tex. 184; Foster v. Leta, 86 IIL 412; Bristol v. County of Carroll, 95 Ill. 84; Kimball v. Stormer, 65 Cal. 116