CHAPTER XX.

ADVERSE POSSESSION AND REAL ACTIONS.

SEC. 254. Title by, under Statutes. The acquisition of the title to land by adverse user is referable to and predicated upon the statutes of limitations in force in the several States, which, in effect, provide that an uninterrupted occupancy of lands by a person who has in fact no title thereto, for a certain number of years, shall operate to extinguish the title of the true owner thereto, and vest a right to the premises absolutely in the occupier.1 The object of these statutes is to quiet the

titles to land, and prevent that confusion relative thereto which would necessarily exist if no period was limited within which an entry upon lands could be made; and they are believed to be of even more importance to the interests of society than those relating to personal actions. The effect of these statutes generally is, not to transfer the fee to lands from the true owner to the occupier, but to destroy the remedy of the true owner for their recovery by action, and to vest an absolute right of exclusive possession in the occupier as against the true owner and all the world, and a right which is transferable and vests in his grantees a right to the lands as full and complete as could be conferred by the owner of the fee. In a word, it vests in the occupier a title to the premises by possession, which is in every respect equal to a conveyance of the fee.' But while the fee does not pass under a naked adverse possession for the requisite period, yet, when a person enters into possession under color of title, and occupies adversely for the requisite period, he is treated as being clothed with the title to the premises in fee-simple. The title acquired in such cases is predicated upon the presumption that the party in possession is the real owner, or that the real owner has surrendered or abandoned his claim to the premises, or he would have asserted his claim thereto within the requisite period, to save his right. The first statute enacted to settle the title to lands which were in the adverse occupancy of a person other than the real owner, for a long period of time, was enacted during the reign of Henry VIII., a copy of which is given in the appendix to this work. This statute fixed the period of occupancy requisite to quiet titles at sixty years, and was regarded with great favor. The period was materially lessened by Stat. 21 James I. ch. 27, and twenty years' adverse occupancy was fixed upon as sufficient to defeat the true owner's right of entry, except when he was at the time under some one of the disabilities named in the statute. In this country, the period within which a right of entry is barred is fixed by the statute of each State. In Maine, Massachusetts, New Hampshire, New York, Alabama, Delaware, Indiana, Illinois, Minnesota, North Carolina, South Carolina, Oregon, Maryland, Wisconsin, and Dakota, the period is twenty years; in Ohio, Pennsylvania, and Wyoming, twenty-one years; in Vermont, Connecticut, Michigan, Kentucky, Kansas, and Virginia, fifteen years; in Missouri, Mississippi, Nebraska, Texas, West Virginia, and New Mexico, ten years; in Florida, Tennessee, Arkansas, and Utah, seven years; and in California, Colorado, Nevada, Arizona, Idaho, and Montana, five years. It will be observed that the shortest periods are

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1 Trim v. McPherson, 7 Coldw. (Tenn.)

2 Hopkins v. Calloway, 7 Coldw. (Tenn.) 37; Hale v. Gladfelder, 52 Ill. 91.

8 Abeel v. Harris, 11 G. & J. (Md.) 371; Cooper v. Smith, 9 S. & R. (Penn.) 26.

4 In Maryland, the statute does not extend to any possession except where "land shall be taken up under a common or special warrant, or warrant of resurvey, escheat, or proclamation warrant."

adopted in the new States and the Territories, and the wisdom of this course is not doubtful. In some of the States different periods are adopted, according to the character of the estate occupied, or the nature of the occupancy. Thus, in New Jersey, sixty years' possession is ordinarily necessary; but thirty years' occupancy is sufficient when the possession commences or is founded on a proprietary right duly laid thereon, and recorded in the surveyor-general's office. In Arkansas, when the plaintiff does not claim title to the land, and neither he nor his intestate has been in possession for five years, his right of entry is barred. Where a person claims as, or under, a purchaser of lands at a judicial sale, his title cannot be impeached after five years, unless the person claiming the right of entry was a minor or of unsound mind when the sale was made, and in that case three years after the removal of the disability is given; and persons holding under a sheriff's or auditor's sale for the non-payment of taxes, or who have redeemed the same from the State auditor under the statute, or who hold the same under an auditor's deed, are protected, unless the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the lands in question within two years next before the action was commenced. In Indiana, a purchaser of lands under an execution, as well as all persons claiming under him, are protected after ten years from the sale; and purchasers, &c., from executors, administrators, guardians, or commissioners, who have sold under a judgment of a competent court directing the sale, are protected, unless action is brought within five years. In Illinois, à person actually residing on lands for seven consecutive years, having a connected title in law or equity, deducible of record from the State or the United States, or from any public officer or person authorized to sell the same, is protected against all claims of title upon which action is not brought within that period; and where a person is in the actual possession of lands under color of title, made in good faith, for seven consecutive years, and during such period pays all taxes assessed thereon, he is adjudged the legal owner of such lands to the extent and according to the purport of his paper title; and the same provision exists in favor of a person having color of title made in good faith to vacant and unoccupied lands, who during the period of seven years pays the taxes thereon, unless some person having a better title within that time pays the taxes thereon assessed for one or more years during such period.

These provisions, however, do not apply to lands owned by the State or the United States, nor where the person having an adverse title to the lands is under any of the disabilities specified in the statute, and commences an action for the recovery of the lands within three years after such disabilities are removed. In Kentucky, possession for seven years under a title of record from the Commonwealth vests the title in the occupier against all adverse claimants under or by virtue of interfering surveys or patents, except where the claimant at the time a

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cause of action accrued was under some one of the disabilities named in the statute. In Kansas, an action for the recovery of land sold for taxes is barred in two years from the time when the deed is recorded, for lands sold on execution within five years from the recording of the deed, and for lands sold by executors, administrators, or guardians, within three years from the time when the deed is recorded; in all other cases within fifteen years from the time when the right of action or entry accrued. In North Carolina, the State is barred when a person has been in the adverse occupancy of lands belonging to it under visible lines or boundaries, for thirty years. Where a person has been in the possession of lands with visible lines and boundaries under colorable title for seven years, such possession is a perpetual bar against all persons except such as are under some one of the statutory disabilities, and railroad, turnpike, or canal companies. In all other cases twenty years' occupancy under known or visible boundaries is a bar. In South Carolina, the State is barred in forty years, where, during that period, it has not received any rent for, or profits from, the land. In Michigan, where the title to land is claimed by or through some deed made by an executor, administrator, guardian, sheriff, or other proper ministerial officer under the order, decree, or process of a competent court, five years' occupancy under such deed constitutes a bar against all persons claiming title thereto; and an occupancy of ten years under a deed made by some officer of the State or of the United States authorized to make deeds upon the sale of land for taxes assessed thereon and levied within the State, makes a complete bar; but in all other cases fifteen years' occupancy is necessary. In Nevada, a person in possession of mining claims, and working the same in the usual and customary manner, is protected by two years' possession. In Tennessee, a continuous adverse possession of lands held under a conveyance by husband and wife for twenty years, the conveyance being predicated upon a good consideration and free from fraud, operates as a perpetual bar to the husband and wife, and all persons claiming title by or through them.1 In Texas, a person holding peaceable and adverse possession of land, cultivating, using, or enjoying the same for five years, paying the taxes, and holding it under a deed duly registered, is protected, unless the deed was forged or executed under a power of attorney; 2 but in all other cases ten years' possession is necessary. But where a person has had peaceable and uninterrupted possession of lands for three years under title or color of title, as defined by sec. 3192, such possession constitutes a complete bar. In Virginia, a distinction is made between lands lying on the east side of the Alleghany Mountains and those upon the west side. As to the former, fifteen years' possession is required; as to the latter, only ten years' possession is neces

1 Appendix, Tennessee, § 2767.
2 Appendix, Texas, § 3193.

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3 Appendix, Texas, § 3194.
4 Appendix, Texas, § 3191.

sary. In some of the States, a distinction is made as to the quality of the estate acquired, where the occupant enters and holds under a color of title, and where he merely holds by naked possession. So, too, in several States a distinction is made between the character of occupancy required in the two cases; but it will be unnecessary to refer to that matter at length in this place, as this distinction will be developed in another part of this chapter.

SEC. 255. Statutory Provisions as to Adverse Possession. — In New York, for the purpose of constituting adverse possession under a claim of title founded upon a written instrument, the premises are deemed to have been possessed and occupied in either of the following cases: 1st, where it has been usually cultivated and improved; 2d, where it has been protected by a substantial enclosure; and, 3d, where, although not enclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for the ordinary use of the occupant. And where a known farm or a single lot has been partly improved, the other portion, if used according to the usual course and custom of the adjoining country, is treated as within the possession of such occupant. Under this statute it is held that the occupancy need not be under a valid deed, but that if the deed covers the land, and there has been an occupancy under it for the requisite period, although the person executing the deed had no authority to do so, it is sufficient. Substantially the same provision exists in the statutes of Florida, South Carolina, California, Wisconsin, Nevada, Arizona, Dakota, Idaho, Montana,10 and Utah." In New York and in all the States named supra, it is also provided that where a person claims title not founded on a written instrument, judgment, or decree, such land shall be deemed to have been occupied and possessed, 1st, where it has been protected by a substantial fence; and, 2d, where it has been usually cultivated and improved.

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Under these statutes, specifically defining what possession shall be regarded as adverse, the possession, in order to be operative, must be shown to be by some one of the modes stated in the statute, or it will be no protection, however long such possession may have been continued.12 Under these statutes, in order to acquire a title by possession on account of an enclosure, the party claiming must show that he has