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content with acquiring possession of his property in an improved condition after he has neglected to assert his title for a considerable length of time, it is certainly equitable that the defendant should be allowed the value of his improvements, made in good faith, to the extent of the rents and profits claimed. And this is the view of the subject which is supported by the authorities. (Coulter's Case, 5 Coke’s R. 30. Green v. Biddle, 8 Wheat. R. 81, 82. Jackson v. Loomis, 4 Cow. R. 168.) But, although the defendant in the action for mesne profits may set off the value of his improvements, such valne ought in the first instance to be deducted from the profits received before the date of the demise, and which the plaintiff is precluded from receiving. (Hylton v. Brown, 2 Wash. C. C. R. 165.)

Sometimes the matter of the damages proper to be recovered in the action for mesne profits is regulated by statute. For example, in the state of New York the Revised Statutes have prescribed as the measure of damages in this class of cases the same rule which would prevail in assumpsit for use and occupation. The compensation in such cases is to be adjusted as upon contract, and not upon the footing of a tort. (Holmes v. Davis, 19 N. Y. R. 488.) And in New York the plaintiff in the action for mesne profits is entitled to recover the same only for six years. (Jackson v. Wood, 24 Wend. R. 443.) But under the present practice the plaintiff in such action is entitled to recover damages from the time of the dernise as laid in the declaration or complaint in the ejectment suit, although a period of more than six years be covered; provided the defendant has not pleaded the statute of limitations. (Ainslie v. The Mayor, etc., of New York, 1 Barb. R. 168. Code, $ 74.) So also in Pennsylvania mesne profits may not be recovered beyond six years, or the limitation of an action of trespass. (Hill v. Meyers, 46 Penn. R. 15.)

If the costs of the plaintiff in the antecedent action of ejectment are stated as a part of the damages in the action for mesne profits, such damages must be proved in the ordinary manner; and, if the ejectment has been defended, his claim is usually limited to the amount of the taxed costs; although it has been held that the plaintiff in these cases is entitled to be reimbursed the amount which he has been compelled to pay in obtaining the restoration of the property which the defendant has wrongfully taken or withheld from him. (Brooke v. Bridges, 7 B. Moore's R. 404, 471.


(Doe v.


Doe v. Perkins, 8 ib. 198. Doe v. Davis, 1 Esp. R. 358. Doe v. Hare, 2 Dowl. P. C. 245. And vide Alexander v. Hen, 11 Penn. R. 537.) But, when the judgment in ejectment has been obtained by default against the casual ejector, the plaintiff is allowed to recover reasonable costs as between attorney and client. Huddart, 4 Dowl. P. C. 437. Same Case, 5 Tyr. R. 846. v. Roake, 7 Barn. & Cres. R. 404.) And, in a case where the defendant in ejectment had appeared and pleaded, and afterward withdrew his plea, the plaintiff in the action for mesne profits was allowed to recover his costs in the action of ejectment, although they had not been taxed. (Symonds v. Page, 1 Crompton & Jervis' R. 29.)

The rule prescribed by statute in respect to the damages in the action for mesne profits may be ascertained in some instances by reference to the chapters herein in which the action for the recov ery of real property in the several states is treated; and perhaps nothing further need be said upon the subject in this place.







The subject of adverse enjoyment has been examined to a considerable extent in the previous chapters of this treatise in which disseisin and the statute of limitations are considered; but the more specific discussion of the subject was expressly reserved for a subsequent place. The question of adverse possession of real property is inseparably connected with that of the statute of limitations, because, if there were no statute limiting the right of entry upon, or of bringing the action for the recovery of, real property, there would never be a necessity for scrutinizing the possession to learn whether such possession be adverse or not. Possession in law, to be sure, is prima facie evidence of legal title; but, if it actually appear that the title to the property is in a person out of possession, except for the statute of limitations, the possession of such property would avail nothing. So also it is not practicable that there should be a disseisin without the entry upon the land be adverse to the person disseised. It is obvious, therefore, that the whole subject of adverse enjoyment was necessarily involved in the consideration of disseisin and the statute of limitations, and that the examination of the subject in this place is, hence, considerably abbreviated by the previous discussion of kindred subjects. Indeed, it is not possible to obtain any practical understanding of the subject of adverse enjoyment, without


a previous knowledge of the object and intent of the statute of limitations; and these have been quite elaborately explained in the previous chapters referred to. It remains, however, to point out some general principles which always pertain to an effectual adverse possession, and to consider the cases in which an adverse enjoyment may be made available as a defense to an action brought for the recovery of real property.

The subject of the adverse enjoyment of real estate has always been one of considerable interest; but especially in the United States, with its immense territory, and the commercial and manufacturing habits of its population, the subject has become one of very great importance, and one which has elicited much legal discussion and judicial decision. In some instances the statutes of the state expressly declare what shall constitute an adverse possession of lands, while in others the question rests on judicial construction and decision. So also in some instances the statutes simply take away the remedy for the right of entry upon lands after the limited period, while in others it is expressly enacted that an uninterrupted possession of the property for the limited length of time shall of itself constitute a complete title. However this may be, it is all the same to the person in the adverse enjoy. ment; for, if he cannot be disturbed in his possession, it is wholly a matter of indifference to him whether he is sustained in his claims because the law vests the title in him, or whether the true owner of the property is estopped from asserting the actual title. As a general rule, it may be affirmed that quiet and peaceable possession of real property is prima facie evidence of the highest estate in the property, that is to say, a seisin in fee; and, if such possession is continued without interruption the whole period prescribed by the statute of limitations, the evidence becomes positive and conclusive; but, in order that it have this latter effect, the possession must be adverse. Whenever the statute declares what shall constitute the possession adverse, the question is settled by a reference to the statute, and the decisions of the courts which have been made under it. But, when the statute is silent upon the subject, the question is settled by general principles which have been sanctioned and established by the courts. The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title; this seisin and possession is co-extensive with his right, and continues till he is ousted thereof

by an actual adverse possession. This is a settled principle of the common law, repeatedly recognized and adopted by the courts of this country, and is not now to be questioned. (Vide Green .v. Litter, 8 Cranch's R. 229, 230. Barr v. Gratz, 4 Wheat. R. 213, 233. Propagation Society v. Pawlett, 4 Peters' R. 480, 505, 506. Clark v. Courtney, 5 ib. 354, 355.) And every person in the actual possession of lands is presumed to be in possession thereof as the owner of the title, or in subordination to the title of the true owner. The fact of possession per se, therefore, however long it may have endured, does not establish the title, because it is not considered the possession of the precarious occupier, but of him upon whose pleasure its continuance depended. (Lord Cholmondelly v. Lord Clinton, 2 Jacob & Walker's R. 1.) Clearly, it is not possession alone which will bar the true owner, but that possession must be adverse. What then will constitute a valid and effectual adverse possession ? To this it may be answered, that it is not quite easy to lay down any precise rule by which to determine the question; and yet it becomes the duty of him who assumes to write upon the subject to examine it with care, and endeavor to place it upon the basis of original legislative enactment. And as a frequent recurrence to first principles in any science is said to be the greatest safeguard against error, so will a judicious investigation of the policy of the statute of limitations tend to a correct determination of the various questions which may arise under it. Happily, a learned senator in the late court of errors of the state of New York once gave a history of the statute limiting the right of entry into land, and the principle and policy of the statute, in a case involving the subject of adverse possession before that court for decision. From the statements of the senator, it appears that more than two centuries and a halfhave now elapsed since the enactment of the English statute of limitations (21 James I, ch. 16), and which has been adopted in this country, and was substantially re-enacted soon after the organization of our government. It was adopted in England after near a century of experience under a statute of Henry VIII of more than double the period, intended and calculated “to impose diligence on and vigilancy in him that was to bring his action;" and it has been sustained by the united concurrence and approbation of all succeeding legislators and jurists to the time. No one who has reflected upon the subject, and whose


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