LESSEE OF JAMES H. EWING, FLAINTIFF IN ERROR V. JACOB BURNET.

Ejectment. Ohio. It is the exclusive province of the jury to decide what facts are proved by competent evidence. It is their province to judge of the weight of testimony as tending, in a greater or less degree, to prove the facts relied upon. An elder legal title to a lot of ground gives a right of possession, as well as the legal seizure and possession thereof, co-extensive with the right; which continues until there shall be an ouster by actual adverse possession, or the right of possession becomes in some other way barred.

An entry by one on the land of another, is or is not an ouster of the legal possession arising from the title, according to the intention with which it is done. If made under claim or colour of right, it is an ouster; otherwise it is a mere trespass. In legal language the intention guides the entry, and fixes its character.

It is well settled that to constitute an adverse possession there need not be a fence, a building, or other improvement made; it suffices for this purpose that visible notorious acts are exercised over the premises in controversy, for twenty one years, after an entry under a claim and colour of title.

Where acts of ownership have been done upon- land, which from their nature indicate a notorious claim of property in it, and are continued for twenty-one years with the knowledge of an adverse claimant, without interruption or an adverse entry by him for twenty-one years; such acts are evidence of an ouster of the former owner, and of an actual adverse possession against him; if the jury shall think that the property was not susceptible of a more strict and definite possession than had been so taken and held. Neither actual occupation or cultivation are necessary to constitute actual possession, when the property is so situated as not to admit of any permanent useful improvement; and the continued clain of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and could not exercise over property which he did not claim.

Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail: but the Court will first take the instrument by its four corners, in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it. An adverse possession for twenty-one years under claim or colour of title merely void, is a bar to a recovery under an elder title by deed; although the adverse holder may have had notice of the deed.

IN error from the circuit court of the district of Ohio.

The plaintiff in error instituted an action of ejectment in the circuit court of Ohio, at December term, 1834, against the defendant, to recover a lot of ground in the city of Cincinnati. Both the plaintiff

and the defendant claimed title under deeds from John Cleves VOL. XI.-F

[Ewing v. Burnet.]

Symmes, the original grantee of the United States, for all the land on which the city of Cincinnati is erected. The deed from Symmes, under which the plaintiff asserted his title, was executed June. 11th, 1798, to Samuel Forman; the deed from Symmes to the defendant, for the same lot, was dated May 21, 1803. An adverse possession for twenty-one years, and upwards, was relied on, as constituting a sufficient legal title, under the statute of limitations of Ohio. The case, and the evidence, are fully stated in the opinion of the court.

The cause was tried at July term, 1835, and a verdict under the instructions of the court, was found for the defendant, on which a judgment was rendered. The plaintiff tendered a bill of exceptions.

The charge of the court was as follows:

The plaintiff having shown a deed for the premises in controversy older in date than that which was given in evidence by the defendant, on the prayer of the defendant, the court. nstructed the jury that his actual possession of the lot, to protect his title under the statute of limitations, must have been twenty-one years before the commencement of this suit. That suing for trespass on the lot, paying the taxes, and speaking publicly of his claim, were not sufficient to constitute an adverse possession. That any possession short of an exclusive appropriation of the property by an actual occupancy of it, so as to give notice to the public and all concerned, that he not only claimed the lot, but enjoyed the profits arising out of it, was such an adverse possession as the statute requires. That to constitute an adverse possession it is not essential that the property should be enclosed by a fence, or have a dwelling house upon it. If it were so situated as to admit of cultivation as a garden, or for any other purpose without an enclosure, and it was so cultivated by the defendant during the above period, it would be sufficient; or if the lot contained a coal mine, or marble or stone quarry, and it was worked the above period by the defendant, he having entered under a deed for the whole lot, such an occupancy would be an adverse possession, though the lot had no dwelling house upon it, and was not enclosed by a fence. And also, if the lot contained a valuable sand bank which was exclusively possessed and used by the defendant for his own benefit, by using the sand himself and selling it to others, and his occupancy of the lot in this manner was notorious to the public and all concerned; and if the defendant paid the taxes for the same, ejected and prosecuted trespasses on the lot, it being situ

[Ewing v. Burnet.]

ated adjoining to the lots on which the defendant actually resided, except the intervention of a street which had not been graduated and opened so as to be. used by the public; and said lot preserved the view of the defendant from his residence unobstructed, and such possession was continued the time required by the statute, it would constitute an adverse possession for the whole lot, the defendant having entered under a deed as aforesaid. The court also said to the jury the law had been settled in Kentucky, that if a person residing on a tract of land should purchase by deed another tract adjoining to it, his possession would not be extended over the tract thus purchased; and that this seemed to be reasonable, and was sustained by the doctrines of possession as generally recognised. That had the lot in controversy adjoined the premises on which the defendant resided, the case would come within the rule; but that a street intervened between the residence of the defendant and the lot in controversy, which would prevent an application of the rule.

Mr. Storer, for the plaintiff in error, contended that the circuit court had erred, in charging the jury that the evidence adduced by the defendant established an adverse possession of the lot of ground in controversy, for twenty-one years.

2. That a part of the charge was erroneous in having laid down law as applicable to a supposititious and different case, and in so stating it as that it was applied, by the jury, to the case on trial.

The substance of all the testimony is this: The defendant, Jacob Burnet, claimed to be the owner of the lot under a deed dated in 1804. He has occasionally driven persons away from the lot, and prevented sand-diggers from carrying off sand. In 1820 he leased the privilege of digging sand. No fence was ever built around the lot, but, on the contrary, the lot was laid open as a common, and was passed over daily by the witnesses. Mr. Burnet has his residence on the opposite side of the street, and his own lot, opposite to this, on which was his dwelling, was tenced in. He has paid taxes. on the lot since 1810, and has once or twice brought suit against persons for trespassing on the lot; and has always claimed it as his

own.

If these facts constitute an adverse possession, then the judgment is right. The evidence being all before the court, in the bill of exceptions, whether they constitute or amount to an adverse possession, is a question of law. "Adverse possession is a legal idea;

[Ewing v. Burnet.]

admits of a legal definition of legal distinctions; and is, therefore, correctly laid down to be a question of law." Bradstreet v. Huntington. 5 Peters' Rep. 438.

In the absence of proof of any actual possession of the premises in controversy, the law presumes a possession in the person having the legal title: as the plaintiff's lessor shows the elder title in this case, and the law having attached to that title a constructive possession, the proof of an actual adverse possession is cast upon the defendant. The law raises no presumptions against the elder title; it will not presume that any thing has been done: hence the defendant must show, beyond any reasonable doubt, first, that there has been an adverse possession; second, that adverse possession has continued for at least twenty-one years. 8 Cranch, 250; 5 Peters, 355; 3 Wendall, 152; 4 Mass. 417; 3 Johns. Ca. 124; 10 Serg. & Rawle, 305.

First. There must, then, have been an adverse possession; and here the inquiry will be what constitutes such a possession, so as to create a bar to the recovery of the true owner?

To constitute an ouster of him who was seised, the deprivor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession. 4 Mass. Rep. 418; 1 Mass. Rep. 486.

"Adverse possession must be marked by definite boundaries, and be regularly continued down, to render it availing." 9 Cowen, 654; 10 Johns. Rep. 477. "The act of limitation does not prevent the entry of the owner of the land, and bringing an ejectment at any time, unless when there has been an actual, continued, visible, notorious, distinct, and hostile possession for twenty-one years." 6 Serg. & Rawle, 23.

"Rights, barred by limitations, are where there is an actual, exclusive, adverse possession; definite, positive, and notorious; marked by definite boundaries; an uninterrupted and continued possession for twenty-one years." 3 Serg. & Rawle, 294; 1 Har. & Johnson, 545; 5 Har. & Johnson, 266. "The possession that will give a title, under the statute of limitations, must be an actual occupancy, a pedis possessio, definite, positive, and notorious." 2 Nott & M'Cord,

343.

"Digging a canal, and felling trees, are not such acts of possession as may be the basis of the prescription of thirty years." 12 Martin's Rep. 11; 9 Martin's Rep. 123; Appendix to Adams on Eject.

493.

[Ewing v. Burnet.]

"The occasional exercise of dominion, by broken and unconnected acts of ownership, over property which may be made permanently productive, is in no respect calculated to assert to the world a claim of right; for such conduct bespeaks rather the fitful invasions of a conscious trespasser, than the confident claims of a rightful owner." 2 N. Car. Law. Rep. 400. "This title by possession, so as to defeat a grant or other legal conveyance, is never to be presumed, but must be actually proved and shown, in order to rebut a prior title, in the same manner and with the same degree of precision, as plaintiff must show a clear title in himself before he can recover." Bay's Rep. 491.

2

"It is a settled rule that the doctrine of adverse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favour of possession in subordination to the title of the true owner." 9 John. Rep. 167; 8 John. Rep. 228; 5 Pickering, 134-5; 3 John. Cases, 124; 1 Cowen, 285.

Again. There must not only have been an adverse possession, but such possession must have continued during the period of twentyone years.

"This possession must not only continue, but it must continue the same in point of locality, during the prescribed period of time, sufficient to constitute it a bar; that is to say, a roving possession, from one part of a tract of land to another, cannot bar the right of entry of the owner upon any part of the land which had not been held adversely for twenty-one years." Hall's Law Journal, 255, 256. "The possession must have so continued that at any time an ejectment might have been brought against an occupant on the land, to try the right of entry." 3 A. K. Marshall's Ken. Rep. 366.

"If there is any period, during the twenty years, in which the person having the right of entry could not find an occupant on the land, on whom he could bring and sustain his ejectment, that period cannot be counted against him." Braxdale v. Speed; 3 A. K. Marshall's Rep. 366; 4 Bibb, 257; 1 A. K. Marshall's Rep. 106; Smith v. Mitchell; 1 A. K. Marshall's Rep. 208.

"An occasional use of the land, either by cutting down and taking away trees, digging or taking away.stone or sand, or making sugar once a year, will not amount to an adverse possession." 1 A. K. Marshall's Rep. 106.

"In the case of Smith v. Mitchell, 1 Marshall, 208, the court