Potts v. Gilbert

WASHINGTON, Circuit Justice (charging jury). The only defence, seriously relied upon in this case, is the act of limitations; because, as to the title of Clark, it cannot be used against the plaintiff, whose title was perfected in the year 1S00, three years before Clark’s warrant was even surveyed; and this was not accomplished, until thirty years after the date of the warrant; nor was any part of the purchase money ever paid. The statute of limitations of this state, is. in substance, the same as that of 21 Jac. I. c. 10; and declares, that no entry shall be made on land, but within twenty-one years next after the right or title to the same descended or accrued. In the construction of both statutes, it lias always been held, that the actual entry of the owner, is not necessary to prevent the operation of the law, unless an actual adverse, possession is taken by a stranger; from which time, and not before, the limitation begins to run. The grant of land, by the government, passes at once to the grantee the legal possession, as well as the title; which continues, until he is disturbed by an actual adverse possession. This was decided in the case of Greene v. Liter, S Cranch [12 U. S.] 229. According to the law, as decided in this state, the title of the commonwealth vests in the grautee, upon the return and acceptance of his survey, and payment of the purchase money: and. consequently, the legal possession must be vested in him at the same time. The adverse possession before mentioned, 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 roviug possession from one part of a tract of laud 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, although the different periods of possession of the separate parcels, should amount, in the whole, to that number of years. For, it is a clear principle of law, that the right acquired by the adverse-possession of a disseisor, or of one who enters, or retains possession by wrong, can never extend beyond the limits of the particular spot to which his occupation is confined. If lie could go beyond these limits, there would exist no other to circumscribe his claim. He cannot resort to the metes and bounds of the tract upon which he has settled: because the legal possession of the owner continues unaffected by the tortious entry, except so far as the actual adverse possession has disturbed it. The legal owner is constructively in possession of the whole tract, because his title extends to the whole; — a wrongdoer can claim nothing in relation to his possession by construction. Whether, to support the possession of a person who enters without title, and who encloses, improves, and cultivates it, and continues the same peaceably for the space off twenty-one years; it is incumbent upon him to show that such possession was taken and continued under a claim or colour of title; is a question of great importance, and in our-opinion of no small difficulty. The affirmative of this question, seems to be maintained by the learned judges of New York, and the opinion is therefore entitled to our highest respect. Our own mind is not decided upon the point; and as it is not material to the decision of this case, we shall express no opinion upon it. But the court is perfectly clear, that where different persons enter upon land in succession, each retaining the possession for a period short of twenty-one years, the last possessor, who may be the defendant, cannot tack the possessions of his predecessors to his own, so as to make out continuity of possession, sufficient to bar the entry of the owner. The possession of A, the first occupant, cannot be the possession of B, the next occupant; because the-moment A quits the actual possession, the legal possession of the real owner is restored, and the entry of B constitutes him a new disseisor; and if he seek to bar the entry of the owner, he niust show an actual adverse possession, continued in himself for twenty-one years. There is no privity between A and B. Neither do we think the present case is strengthened, in favour of the defendant, by the evidence of the witnesses, that the several occupants sold to their successors. Nothing can be more vague than 1205 this testimony. It does not state, that any conveyances were executed, or what each person sold; — whether it was title, possession, or good will; or whether any two of the sales were applicable to the same spot. Indeed, what had any of them, in point of title, to sell? Not only is an adverse possession to bar an entry, to be confined to the particular parcel so occupied, but some evidence should be given to show the location of such parcel, that it may be seen, whether the continuity of possession, during the whole period, was applicable to it or not. Verdict for plaintiff.