M'Caffrey v. Fisher

The opinion of the Court was delivered by Sergeant, J. — The principles applicable to this case have been frequently adjudicated in this court, and are discussed at length [182] m several of the cases reported. One who, without title, or colour of title, enters into unseated land which has been appropriated by warrant and survey to another, acquires a right under the Statute of Limitations, only to so much as he actually cultivates or encloses. Sweeney v. M’Culloch, (3 Watts 345); Miller v. Shaw, (7 Serg. & Rawle 129); Farley v. Lenox, (8 Serg. & Rawle 392); Royer v. Benlow, (10 Serg. & Rawle 303); Potts v. Gilbert, (3 Wash. C. C. Rep. 475); and colour of title is where the entry is made under a bona fide and not pretended claim to a title existing in another. (3 Watts 72). But if such occupant pay the taxes on the tract with the acquiescence of the owner for 21 years, he will acquire a title to the tract. M’Call v. Neely, (3 Watts 69); Royer v. Benlow, (10 Serg. & Rawle 303); for such payment is equivalent to a claim of title, and makes the possession adverse to that extent. In the case before us, the defendant’s predecessor entered without title or colour of title, on land which had been sold by the Commonwealth to the plaintiff’s ancestor by warrant, survey, and patent. He never, so far as appears, paid the taxes on the tract, in whole or in < part, or did any act extending his claim beyond what he occupied. His possession, therefore, under the Statute of Limitations, is adverse only as to what he enclosed and cultivated. The case of Criswell v. Altemus, (7 Watts 580), relied on on behalf of the plaintiff in error, does not differ from the former decisions, or vary the principles uniformly acted upon. For Mr Justice Kennedy there says, that when an intruder, without colour of title, settles on an unseated tract belonging to another, holding it under warrant or patent, and claims it as his own by acts of ownership, putting up buildings, clearing and fencing more or less of it, and using the whole according to the custom of the country, that is, the clear land as arable or meadow, and the woodland for timber, and also returning the whole to the assessors as his own, and paying taxes thereon when assessed, for a period of 21 years, it is sufficient to protect him for the whole, whether cleared or woodland. Judgment affirmed.