281. One who disseises the owner of land, and holds it adversely for the period prescribed by the statute of limitations, acquires title to the estate of the disseisee. Acquisition of title by adverse possession is subject to the following conditions:
(a) The possession must be actual for part of the land at least (p. 459).
(b) It must be visible or notorious (p. 462).
(c) It must be hostile or adverse (p. 463).
(d) It must be exclusive (p. 465).
(e) It must be continuous by one person or by persons in privity (p. 466).
(f) Possession is adverse to all who have an immediate right to the possession and are not under disability (p. 463).
(g) Possession must be continued for the whole time required by the statute (p. 469). (h) Abandonment by the disseisor after the full period has run does not divest his title (p. 469).
One who has possession of land is entitled to hold such land against all persons except the rightful owner;427 and, if there were
Heirs and assigns may claim an estoppel. Trull v. Eastman, 3 Mete. (Mass.) 121. A reversion may be created by estoppel. Sturgeon v. Wingfield, 15 Mees. & W. 224; Cuthbertson v. Irving, 4 Hurl. & N. 742. Cf. Beddoe v. Wads-worth, 21 Wend. (N. Y.) 120. Contra, Slater v. Rawson, 1 Mete. (Mass.) 450.
424 Shay v. Mcxamara, 54 Cal. 169; Kimball v. Blalsdelj, 5 N. H. 533; Doe v. Skirrow, 2 Nev. & P. 123.
425 Ervln v. Morris, 26 Kan. 664.
426 Hannah v. Collins, 94 Ind. 201.
427 Hughes v. Graves, 39 Vt. 359.
§ 281) no one entitled to the land, the first person taking possession thereof would become the owner, and his title would be said to arise by occupancy.428 But as all public land in this country is owned by the United States or the states, no title can be acquired by occupancy now. When a man takes possession of land belonging to another he acquires rights therein which may ripen into a title either through the doctrine of estoppel, by which the true owner may be prevented from setting up his title against the one in possession, or through the statutes of limitations, which provide that, if one holds possession of land for the period provided by the statutes of the various states, the owner of the land shall have no power to dispossess him. There are two theories as to the manner in which statutes of limitation operate. One is that it merely destroys the remedy of the true owner, and thus cuts off his rights against the one in possession, who, as already stated, has title by that possession against all other persons, by the mere fact of having possession.429 The other theory is that the statute of limitation operates to transfer the title of the real owner to the one in adverse possession of the land, and that the latter acquires a title which he can himself sue on.430 All titles acquired by virtue of the statute of limitations are for the same estates as the one disseised owned. Though it is not presumed that one in possession claims any less estate than a fee simple,431 it may be that a less estate will be gained, as in a case where a tenant for life is disseised, and statute of limitation has run against him. The disseisor has an estate only for the life of the person whom he has disseised, because the owners of the remainders dependent on that estate do not loose their right to recover the land until the expiration of the statutory period after their right to the possession of land accrues, which is not until the death of the life tenant.432
428 2 Bl. Comm. 258. As to occupancy of an estate per autre, see ante, p. 67.
429 2 Dembitz, Land Tit. 1345.
430 Toll v. Wright, 37 Mich. 93; Farrar v. Helnrich, 86 Mo. 521; Stokes v. Berry, 2 Salk. 421. The disseisor may bring an action to quiet title. Independent Dist, of Oak Dale v. Fagen (Iowa) 63 N. W. 456.
431 Some statutes provide that a fee simple shall be acquired. See East Tennessee Iron & Coal Co. v. Wiggin, 15 C. C. A. 510, 68 Fed. 446. 432 piuche v. Jones, 4 C. C. A. 622, 54 Fed. 860; Pinckney v. Burrage, 31
458 title. (Ch. 16
Seisin and Disseisin.
Seisin, as meaning possession of land, has already been discussed 433 It is impossible for two persons, unless they are joint owners, to have lawful seisin of the same land at the same time. If two persons are thus in possession, the one who has title to the land will have the seisin also.434 One who takes possession of land against the claims of the rightful owner is said to disseise the latter, and is called a disseisor. It is not necessary that such person be sui juris, for an infant may be a disseisor.435 Before considering any details or elements of disseisin and adverse possession, it may be mentioned that one may be disseised by election; that is, he may treat certain acts of a trespasser as a disseisin, and proceed against him by the same remedies as are given one who is disseised of his land.436 In order that a disseisin may be claimed in this way, the disseisee must actually abandon the possession.437 A man may be seised of his land by reason of his being in actual possession or occupancy of it himself, or he may be seised through another, holding subordinate to him, as a landlord is seised though his tenant be in possession.438 When the owner of lands has been disseised, his interest in the land has been reduced to a mere right of entry; that is, the owner must make an actual entry on the land in order to regain his seisin, but for this purpose a physical ouster of the disseisor is not essential.439 It is simply necessary that the disseisee enter on the land with the intention of regaining his seisin, and do acts showing such intention.440 At common law, if, before the right of entry is exercised, there be a descent cast, that is, if the disseisor die, and his rights acquired by the disseisin are transferred to his heirs,-the disseisee's right of entry is changed to a mere right of action. This rule obtains, however, in only a few of our states.441
X. J. Law, 21; Merritt v. Hughes, 36 W. Va. 357, 15 S. E. 56; Bagley v. Kennedy, 81 Ga. 721, 8 S. E. 742. So, where possession is taken as life tenant under a void will and title gained by lapse of time, the disseisor will have only a life estate as against the remainder-man in the will. Board v. Board, L. R. 9 Q. B. 48. But where husband and wife are disseised of the wife's lands, her right of entry accrues at once. Melvin v. Proprietors, 16 Pick. (Mass.) 161. Contra, Foster v. Marshall, 22 N. H. 491. If the estate in reversion or remainder is created after the disseisin, the reversioner or remainder-man is barred at the same time as the tenant of the particular estate. Doe v. Jones, 4 Term R. 308.
433 Ante, p. 31.
434 Hunnicutt v. Peyton, 102 U. S. 333; Farrar v. Heinrich, 86 Mo. 521.
435 Lackmaa v. Wood, 25 Cal. 147.
436 Busw. Lim. § 237, note; Blunden v. Baugh, Cro. Car. 302; Smith v. Burtis, 6 Johns. (N. Y.) 197, 215; Proprietors of Township No. 6 v. Mcfar-land, 12 Mass. 325, 327; Prescott v. Nevers, 4 Mason, 327, 329, Fed. Cas. No. 11,390.
437 Burns v. Lynde, 6 Allen (Mass.) 305, 312; Munroe v. Ward, 4 Allen (Mass.) 150.
438 See ante, p. 285.
Possession, must be Actual.
In order that title may be gained by adverse possession, it is necessary that there be an actual disseisin of the owner, and this can only be by the disseisor being in possession of the land in question.442 No particular acts are necessary to show such possession, though some are of such a nature that they leave no doubt as to the character of the occupancy. Among these may be mentioned residence on the land,443 the erection of buildings and other structures,444 or the actual inclosure of the land with a fence.445 None of these acts are absolutely necessary, and in some cases might be impossible, from the character of the property.446 Adverse possession must be accompanied by an ouster of the real owner of the
439 Shearman v. Irvine's Lessee, 4 Cranch, 367; Jackson v. Haviland. 13 Johns. (N. Y.) 229; Altemus v. Campbell, 9 Watts (Pa.) 28. But see Jackson v. Calms, 20 Johns. (N. Y.) 301; Hall's Lessee v. Vandegrift, 3 Bin. (Pa.) 374.
440 Altemus v. Campbell, 9 Watts (Pa.) 28.
441 3 Washb. Real Prop. (5th Ed.) 140.
442 Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230; Ewing v. Elcorn, 40 Pa. St. 493.
443 Hughs v. Pickering, 14 Pa. St. 297; Cunningham v. Brumback, 2-T Ark. 336; Bell v. Denson, 56 Ala. 444. Cultivation is not always adverse possession. State v. Suttle, 115 N. C. 784, 20 S. E. 725.
444 Ellicott v. Pearl, 10 Pet. 412; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S. W. 484, and 20 S. W. 161; Moss v. Scott, 2 Dana (Ky.) 271; Hubbard v. Kiddo, 87 111. 578.
445 Doolittle v. Tice, 41 Barb. (N. Y.) 181; Millar v. Humphries, 2 A. K. Marsh. (Ky.) 446. As to what is a sufficient inclosure, see Yates v. Van De Vogert, 56 N. Y. 526; Pope v. Hanmer. 74 N. Y. 240.
446 People v. Van Rensselaer, 9 N. Y. 291; De Lancey v. Piepgras, 138 N land, though it is not necessary that it be by force. Cutting timber or grass on the land which is claimed to be held by adverse possession has been held insufficient to show disseisin.447 And in all cases the disseisor must do the acts which constitute the disseisin with the intention to produce that effect.448 A mere intention to disseise is not effectual unless accompanied by positive acts. For instance, the owner of the surface of land cannot disseise another who owns the mines under the soil by merely claiming such mines, but must work them, or do other acts indicative of ownership.449 So, too, taking a deed to lands from one not the owner, and recording it, does not constitute a disseisin unless there is an entry under the deed.450 Nor would an entry upon lands claimed under a deed be a disseisin if the entry was made by mistake, with no intention to disseise.451 But an entry under a deed, though the deed be absolutely void, will be an ouster of the owner.452