Chessen v. Harrelson

McCLELLAN, J. One fact absolutely essential to plaintiffs riglit to recover is his actual possession of the . land in controversy'prior to defendant’s alleged forcible entry upon it. Plaintiff hád no color of title, and the only evidence of possession — aside from repute, which cannot' establish any sort of possession, and the fact that defendant, many years ago, verbally agreed to sell him the land and thereupon surrendered possession to him, which facts do not prove actual possession — was that on three or four occasions, from 1875 to 1890, a period of fifteen years, plaintiff had cut and removed, or sold to others, who cut and removed, some timber from the tract of land.. This was clearly not such possession as even this land, valuable principally for its timber, reasonably admitted of, and was, therefore, not such actual possession as was essential to plaintiff's recovery. And the judge below, in effect, properly so instructed the jury. Affirmed.