The possession thus acquired by the junior claimant when he enters upon the land in controversy, improving and cultivating a part, and claiming title to the whole, is an actual possession of the whole land within his boundary. And whilst such possession, as was said by Judge Baldwin, in Taylor v. Burnsides, cited above, may be more manifest as to a part than as to the rest, yet, in reference to the whole, possession of part is possession of the entire tract. Thus the real apparent owner, dwelling on his farm, is as truly in the actual possession of his woods and waters as of his pastures, fields and gardens. What is the whole is to be determined by the limits owned or claimed. An intruder, without color of title, is of necessity confined to his mere enclosure. There must be limits to his possession, and these are all he can have. Such enclosures, however, are not the boundaries of the real or apparent owner; his marked or described abuttals show the extent not merely of his claim, but of his exclusive sway. The possession, therefore, of the junior claimant in such a case is both actual and exclusive; and if such possession be not abandoned during the statutory period by the junior claimant, or he be not actually ousted of such possession by the entry upon and actual possession of some part of the land in controversy by the claimant under the senior grant, during that period, his title becomes perfect.
In this case, when the claimant under the deed from Weir and wife entered, in the year 1834, upon the 119-acre tract of land, enclosing and cultivating a part, and claiming title to the whole, his possession was co-extensive with his boundaries, there being at that time no one claiming under the plaintiff's title in the actual possession of any part of his survey. The claimant under the Weir title having thus ousted or disseised the claimant under the plaintiff's title, he was in the actual adverse possession of the whole boundary claimed by him, and the statute of limitations then commenced to run in his favor, not only as to that part of the land which he had enclosed, but as to all his tract.
Before the period had elapsed necessary to make good the title of the junior claimant under the statute of limitations, those under whom the plaintiff claims entered upon, and took actual possession of, the plaintiff's survey, outside of the land in controversy. This entry and possession, it is most earnestly contended by the counsel of the plaintiff, operated to oust or dispossess the claimant under the Weir title of the whole of the land in controversy, except that part which was enclosed.
We are referred to cases decided by the Supreme Court of the United States and the highest courts of Pennsylvania and of other States, as sustaining this view. The decisions of the Supreme Court of the United States upon questions of land titles follows the decisions of the courts of the States respectively in which the land in controversy is located, and are, therefore, for the most part, based upon local statutes and decisions. For, as was said by Mr. Justice Catron, in White v. Burnly, 20 Howard, at page 251, "We have endeavored carefully to follow the doctrine of the Supreme Court of Texas in this opinion, because we are bound to follow the settled adjudications of the State in cases affecting titles of land there." Supervisors v. United States, 18 Wall, at page 82; Balkam v. Wood-stork Iron Co., 154 U. S. 177, 187.
If, therefore, the question now under consideration were an open question in this State, we could gain but little aid from the decisions referred to unless we knew that they were based upon statutes similar to § 2740 of our Code, which provides that "in a controversy affecting real estate, possession of part shall not be construed as possession of the whole, where actual adverse possession can be proved."
But the question involved in this case, we think, was raised and decided in this State as far back as 1844, in the case of Taylor v. Burnsides, reported in 1 Gratt. 165.
The judgment of the court in that case, in which all the judges sitting concurred, beginning at page 209, says: 'The court is of opinion that the instruction given by the said Circuit Court to the jury on the trial of the cause ought not to have been given, but that, in lieu thereof, the said Circuit Court ought to have instructed to the effect following." Then follow five instructions which the court declares ought to have been given. The fourth and fifth of these instructions are as follows:
'4. The tenant cannot sustain his said defense of continued adversary possession, if it shall appear from the evidence, that the demandants, or those under whom they claim, did, within said period of twenty-five years, enter upon the land in controversy, and take actual possession thereof by such means as are mentioned in the second instruction.
'5. That such entry of the demandants, or those under whom they claim, upon, and possession of, the land within their older grants, not embraced by the younger grant of the tenant, could not have the effect of an entry upon and possession of the land in controversy."
This latter instruction holds that an entry upon and possession of the land within the older grant, not embraced within the younger grant, does not have the effect of an entry upon and possession of the land in controversy where the junior patentee had, prior to that time, entered upon and was then actually occupying part of the land in controversy by building, clearing, cultivating, or enclosing it, claiming title to the whole.
This view must necessarily follow, since, under our decisions, the entry of the junior claimant upon the land in controversy, and his occupancy thereof by building, clearing, cultivating, or enclosing a part, and claiming title to the whole - the claimant under the senior patent not then being in actual possession of any part of his tract - gives the junior claimant actual and exclusive possession of his whole boundary The possession of the claimant under the junior title, being an actual adversary possession, to the whole extent of his boundary, the entry and actual possession of the claimant under the senior grant, of lands outside of the lands in controversy would not have the effect of ousting or disturbing the claimant under the junior title as to any part of his tract. The entry, to be good for such purpose, must be made upon the land in controversy; for to oust an actual possession there must be an entry upon that possession. This was expressly held in Fox v. Hinton, 4 Bibb, 559-60, referred to above, and cited with approval by Judge Lee in Koiner v. Rankin.