From the whole of the evidence, I understand that the small parcel was inclosed by a fence on all sides, excepting on the northerly line, where it extended a part of the way only; and at that portion of the line where it did not continue, the high bank served as a substitute. For the purpose of notoriety, as well as good husbandry, this was a substantial inclosure. Why require a fence, when nature had formed a sufficient barrier to prevent the intrusion of cattle? The defendant sufficiently marked the extent of his possession. Suppose a lot of land is bounded on the one side by a navigable river, or a continued ledge of rocks, or a mountain of difficult ascent or descent, and that the other sides are well inclosed, would not this, with a claim of title, constitute an adverse possession? It certainly would; because, in such a case, every thing had been done that could reasonably be required to protect the crop, or denote exclusive occupancy. The case before us is analogous." (Jackson v. Halstead, 5 Cow. R. 216, 220, 221.) By the eighty-fifth section of the code of New York, it is enacted that, for the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure; 2. Where it has been cultivated or improved. It has been held that the first clause of the section was intended to provide that a party claiming to hold adversely should protect his claim by the erection of a substantial inclosure; and the language employed means that he shall erect an inclosure around the land, without relying upon a remote fence of a neighbor, inclosing that neighbor's land also. Although the claimant may avail himself of a fence upon the line, yet it was not designed that a fence located far away from the premises, and including other lands, should be used as a means of protection to a claim of this character. It was also intended that the inclosure should provide fixed, certain and definite boundaries of the claim made, by which it might be designated, marked and known. It must be an inclosure of the lot alone, upon the lines claimed by the party, and not embracing premises adjoining, extending, in part, a great distance from the lines.

It was further held by the court that, to constitute a compliance with the second clause of the section referred to, the land must not only be cultivated, but improved. Reaping alone cannot be

considered as cultivating; nor can the keeping up of a fence already made, mowing the grass and cutting brush, be deemed an improvement within the meaning of the statute. The statute was intended to provide for the ordinary cultivation and improvement of lands in the manner in which they are usually occupied, used and enjoyed by farmers, for agricultural purposes, by sowing, ploughing and manuring, and by the erection of buildings, etc., which may add to their value. (Doolittle v. Tice, 41 Barb. R. 181.)

In an action of ejectment, when it appeared that, at the time of the defendant's entry, the premises were open and uninclosed woodland, so that the person under whom the plaintiffs claimed had no actual possession at that time, and that the only possession he had was by taking wood and timber from the premises upon several occasions and at distant intervals of time, and by inclosing the premises, or some portion of them, and cultivating a crop for a single season; and that there had been no actual occupation of any part of the premises, by the plaintiffs, nor any continued acts of possession by them, since the year 1816, the court held that, in the absence of any deed, or paper title, the plaintiffs could not recover; and it was declared, that, to make out an adverse possession of lands, so as to vest the title, where there is no deed or other written instrument, there must be a real, substantial inclosure-an actual occupancy-pedis possessio, which is definite, positive and notorious; or the premises must have been usually cultivated or improved. Certainty, publicity and notoriety are the essential elements of an adverse possession; and if it be wanting in these particulars, it cannot have the effect to vest the title. (Lane v. Gould, 10 Barb. R. 254. And vide Doe v. Campbell, 10 Johns. R. 477. Jackson v. Wheat, 18 ib. 338.)

So, in a recent case, the supreme court of New York held, that it was erroneous to charge the jury, in an action of ejectment, that an adverse possession by the defendant of the land on and adjacent to the bank of a stream of water, for a sufficient time to mature a title, will be carried constructively and by operation of law to the center of the stream, without any actual adverse occupancy of the land under water in the stream itself. And it was declared that adverse possession should not be permitted to prevail beyond the limits of the actual possession; and such possession must be marked by distinct boundaries; and to give it effect there must be actual occupancy, measured by a dis

tinct, visible and marked, and not by a presumptive or constructive, possession. Hogeboom, J., said: "I think this view is not effectively answered by the argument that adverse possession presumes a grant, and a grant must be presumed to extend to the center of the stream. If an adverse possession is founded upon the idea of a grant, which I do not admit, and which, if countenanced by the earlier cases, ought, I think, to be repudiated, because it is at known variance with the actual truth, the grant must, I think, be presumed to be only coextensive with the actual limits of the adverse possession-a grant with boundaries corresponding with exterior lines of the actual possession. Such a description in a grant would not carry the land to the center of the stream, but only to the shore; for it is undeniable that a deed bounded expressly upon the line of the shore would altogether exclude the land under water. The reason why a deed bounded generally upon a stream of water carries you to the center is, that the stream thus defined is supposed to be a line without width, in the center of the stream, and not a space, having width and extent, as appearing upon the face of the earth. It is because the deed itself, as properly read and construed, by the force of its terms bounds the land by the center line, and not by the shore line of the stream." (Corning v. The Troy Iron and Nail Factory, 34 Barb. R. 529, 532, 533. And vide Adams v. Rivers, 11 ib. 390. Demeyer v. Legg, 18 ib. 14. Hammond v. McLachlan, 1 Sand. S. C. R. 323. Herring v. Fisher, 1 ib. 344. Jackson v. Hathaway, 15 Johns. R. 447. Hooker v. Utica and Minden Company, 12 Wend. 371. Imlay v. Union Branch Railroad Company, 26 Conn. R. 249.)

But it must be considered as settled, if a series of decisions for sixty years can settle a question, that when the occupant of land produces no written title, but relies solely on possession with an assertion of title, he can retain so much only as he had under actual improvement and within a substantial inclosure; and the decisions are that the possession must be marked by distinct boundaries. (Vide Brandt v. Ogden, 1 Johns. R. 156. Jackson v. Waters, 12 ib. 365. Jackson v. Warford, 7 Wend. R. 62. Jackson v. Halstead, 5 Cow. R. 216. Corning v. Troy Iron and Nail Factory, supra.)

In a case before the supreme court of the United States, involving the question of adverse possession under the statute of Ohio,

Mr. Justice Baldwin, among other things, said: "It is well settled that, to constitute an adverse possession, there need not be a fence, building or other improvement made; it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for twenty-one years after an entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases. But it may with safety be said, that where acts of ownership have been. done upon land, which from their nature indicate a notorious claim of property in it, and are continued without interruption or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of a former owner and an actual adverse possession against him, if the jury shall think that the property was not susceptible of a more strict or definite possession than had been taken and held. Neither actual occupation, cultivation or residence are necessary to constitute actual possession, where the property is so situated as not to admit of any permanent useful improvement, and the continued claim has been evidenced by public acts of ownership such as he would exercise over property which he did not claim." (Ewing v. Burnet, 11 Peters' R. 41, 52, 53.)

And, in a still earlier case before the supreme court of the United States, involving the question of adverse possession under the statute of Kentucky, it was declared that the assumption that there can be no possession to defeat an adverse title, except in one or other of these ways, that is, by an actual residence or an actual inclosure, is a doctrine wholly irreconcilable with principle and authority. Nothing can be more clear than that a fence is not indispensable to constitute possession of a tract of land. The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts which are equally eviucive of such an intention of asserting such ownership and possession-such as entering upon land and making improvements thereon, raising a crop of corn, felling and selling the trees thereon under color of title. And it was held that an actual residence on the land, or a pedis positio of it by an inclosure, was not absolutely necessary to constitute a possession adverse. (Ellicott v. Pearl, 10 Peters'

R. 412.) And this is in accordance with the doctrine of the state courts of Kentucky, wherein it has been declared that "it is well settled that there may be a possession in fact of land not actually inclosed by the possessor." (Moss v. Scott, 2 Dana's R. 275.) But this question depends very much upon the provisions of the statute of limitations; and what may constitute an effective adverse possession in one state may not be sufficient in another. There are rules, however, of quite general application, and, where there seems to be an exception, it will be safe to refer to the local statute of limitations, given in previous chapters of this work. When an entry is made upon lands under color of title, the same may be held by a constructive possession; but, if made under a simple claim of title, the possession must be actual, a pedis possessio, definite, positive and notorious. (Vide Bailey v. Irley, 2 Nott & McCord's R. 343. Gibson v. Martin, 1 Harr. & Johns. R. 545. Hoy v. Perry, 1 Litt. R. 171. Shearer v. Clay, Ib. 260. Smith v. Nowells, 2 ib. 160. Hite's Heirs v. Shrader, 3 ib. 456. Braxdale v. Speed, 1 Marsh. R. 106. Smith v. Mitchell, Ib. 207. Skyle's Heirs v. King's Heirs, 2 ib. 585. Anderson v. Turner, 3 ib. 133. Bodley v. Coghill's Heirs, Ib. 615. Moore v. Farrow, Ib. 49. Trotter v. Cassady, Ib. 366. Doolittle v. Lindsey, 2 Aikin's R. 155.)

Said the late Chancellor Kent, in an early case: "The possession fence, as it was termed, which was run round the large tract in 1774, I do not consider as an adverse possession, sufficient to toll the right of entry of the true owner, after twenty years. This mode of taking possession is too loose and equivocal. There must be a real and substantial inclosure, an actual occupancy, a possessio pedis, which is definite, positive and notorious, to constitute an adverse possession, when that is the only defense, and is to countervail a legal title." The fence referred to by the learned judge was a tree and slash fence. (Jackson v. Hardenburg, 2 Johns. R. 234.) And a similar fence has been declared insufficient in Massachusetts. (Colburn v. Hollis, 3 Metc. R. 125.) So also the same doctrine is recognized in New Hampshire. (Hale v. Gliddon, 10 N. H. R. 397.)

In an early case in Maryland, Buchanan, J., delivering the opinion of the court, said: "This is a case of two conflicting claims, in which the pretensions of both parties are set out. The lessees of the plaintiff, with title, having possession by inclosure and culti