title to lands. The enjoyment of land, or such
as lies in grant, under such circumstances as indicate that such
has been commenced and contiuued, under an assertion or color of
right on the
part of the possessor. 3 East, R. 394, 1 Pick. Rep. 466, 1
Dall. R. 67, 2
Serg. & Rawle, 527, 10 Watts R, 289, 8 Con R. 440, 3 Penn.
132, 2 Aik.
364, 2 Watts, 23, 9, John. 174, 18 John. 40, 355, 5 Pet. 402, 4
Actual possession is a pedis possessio which can be only of
and only such possession can a wrongdoer have. He can have
possession. 7 Serg. & R. 192, 3 Id. 517, 2 Wash. C. Rep.
2. When the possession or enjoyment has been adverse for
twenty years, of
which the jury are to judge from the circumstances the law
presumption of a grant. Ang. on Wat. Courses, 85, et seq. But
presumption arises only when the use or occupation would otherwise
unlawful. 3 Greenl. R. 120, 6 Binn. R. 416, 6 Cowen, R. 617, 677,
589, 4 S. & R. 456. See 2 Smith"s Lead. Cas. 307-416.
There are four general rules by which it may be ascertained that
is not adverse, these will be separately considered.
4.- 1. When
both parties claim under the same title, as, if a man seised of
land in fee, have issue two sons and die seised, and one of the sons
by abatement into the land, the statute, of limitations will not
against the other son, for when the abator entered into the land of
father, before entry made by his brother, the law intends that he
claiming as heir to his father, by which title the other son also
Litt s. 396.
5. - 2. When the possession of the one
party is consistent with the title
of the other, as, where, the rents of a
trust state were received by a cestui
que trust for more than twenty years
after the creation of the trust, without
any interference, of the trustee,
such ppssession being consistent with and
secured to the cestui qwe trust
by the terms of the deed, the receipt was
held not to be adverse to the
title of the trustee. 8 East. 248.
6. - 3. When, in contemplation
of law, the claimant has never been out of
possession, as, where Paul
devised lands to John and his heirs, and died, and
John died, and
afterwards the heirs of John and a stranger entered, and
took the profits
for twenty years, upon ejectment brought by the devisee of
the heir of John
against the stranger, it was held that the perception of the
profits by the stranger was not adverse to the devisee"s title, for
two men are in possession, the law adjudges it to be the possession of
who has the right. Lord Raym. 329.
7. - 4. When the occupier has
acknowledged the claimant"s titles, as, if a
lease be granted for a term,
and, after paying the rent for the land during
such term, the tenant hold
for twenty years without paying rent, his
possession will not be adverse.
See Bos. & P. 542, 8 B. & Cr. 717, 2 Bouv.
Inst. n. 2193-94, 2351.
Source: Bouviers Law Dictionary 1856 Edition