, 503] Adverse Possession. 1933 as well as by evidence of the declarations of the person in possession accompanying his possession.50 It may also be shown by evidence of acts by the person in possession of such a character as would not be done by him if he conceded the other's title.51 The payment by him of taxes upon the land has been regarded as evidence that the possession is adverse.52

- Burden of proof. Since the clement of hostility or "adverseness" involves merely the absence of a course of action of an affirmative character, that is, of showing that his possession was hostile or adverse.55 It is presumably true that such wrongful possessor has the burden of proof in the sense of risk of non persuasion of the jury, but in so far as we mean by burden of proof the duty of producing evidence,56 the burden as to the hostility of the possession properly shifts, it is submitted, to the person having documentary title, so soon as the other has introduced evidence of his possession for the statutory period. When it is said, as it frequently is said,56a that the burden of showing adverse possession is upon the party asserting it, this presumably refers to the burden of persuading the jury, and such is probably the sense in which the expression "burden of proof" is used in some of the cases, above cited, in which it is stated that the person claiming by force of the statute of limitations has the burden of showing that his possession was hostile or adverse.

Observed, undertake to explain why a claim of title on the part of the possessor is necessary, and it appears that the rightful owner is quite sufficiently protected by the requirement of adverseness or hostility of possession.60 Did this requirement of the making of a claim of title really mean what it appears on its face to mean, that the person in possession must state that the land belongs to him, the effect would be, approximately, to limit the operation of the statute of limitations to the case of possession by one who believes himself to have title, since one who knows that he has no title is not apt to claim title until his title is questioned.

So. 871; Godfrey v. Dixon Power etc. Co., 228 111. 487, 81 N. E. 1089; Brady v. Baltimore, 130 Md. 506, 101 Atl. 142 (semble); Cha-bert v. Russell, 109 Mich. 571, 67 N. W. 902; Brown v. Peaslee, 69 N. H. 436, 45 Atl. 234; Warne v. Greenbaum - (N. J.) - 101 Atl. 568; Myers v. Folkman, 89 N. J. L. 390, 99 Atl. 97; La Fram-bois v. Jackson, 8 Cow. 589, 18 Am. Dec. 463; Steinwand v. Brown, 38 N. D. 602, 166 X. W. 129; Dikeman v. Parrish, 6 Pa. St. 210, 47 Am. Dec. 455.

50. Gibson v. Gaines. - Ala. -, 73 So. 929; Stockton Saw Bank v. Staples, 98 Cal. 189, 32 Pac. 936; Knight v. Knight, 178 111. 553, 53 N. E. 306; Rand v. Huff, 59 Kan. 777, 53 Pac. 483; Swope v. Ward, 185 Mo. 316, 84 S. W. 895; Harnage v. Berry, 43 Tex. 567. The admissibility of such evidence is discussed with references to cases, in 3 Wigmore, Evidence, Sec. 1778.

51. Grim v. Murphy, 110 I11. 271; Rennert v. Shirk. 163 Ind. 542, 72 N. E. 546; Dyer v. Eld-ridge, 136 Ind. 654, .36 N. E. 522; Dean v. Goddard, 56 Minn 290, 56 N. W. 1060; Whitaker v. Erie

Shooting Club, 102 Mich. 454; 60 N. W. 983; Davis v. Bowman. 55 Miss. 671; Benne v. Miller, 149 Mo. 228, 50 S. W. 824; Brock v. Bear, 100 Va. 562, 42 S. E. 307; Pioneer Wood Pulp Co. v. Chan-dos, 78 Wis. 526, 47 N. W. 661.

52. Holtzman v. Douglas, 168 U. S. 278, 42 L. Ed. 466: Chas-tang v. Chastang, 141 Ala. 151, 109 Am. St. Rep. 45, 37 So. 799; Gee v. Hatley, 114 Ark. 376, 170 S. W. 72; Frick v. Sinon. 75 Cal. 337. 7 Am. St. Rep. 177. 17 Pac. 439; Wren v. Parker. 57 Conn. 529, 6 L. R. A. 80, 14 Am. St. Rep. 127. 18 Atl. 790; Wilbur v. Cedar Rapids & M. R. R. Co., 116 Iowa, 65, 89 X. \V. 101; Carter v. Chirk, 92 .Me. 225, 42 At. 398; Whitman v. Shaw. 166 Mass. 451, 44 N. E. 333; Sauers v. Giddings, 90 Mich. 50 51 N. W. 265: Mattsoa v. Warner, 115 Minn. 520, 132 N. W. 1127; Draper v. Shoot, 25 Mo. 197, 69 Am. Dec. 262: Himmelberger-harrison Lumber Co. v. Craig, 248 Mo. 319, l54 S. W. 73

Royer v. Benlow, 10 Serg & R. 303, Hunter v Malone, 49 Tea Civ. App. 116, 108 S. W. 709

2 R. P. - 47 the recognition of the other's title, it would seem that the lack of hostility, rather than the presence thereof, is an affirmative fact to be proven, in the absence of circumstances which are recognized as legally sufficient to create a presumption that the possession is not hostile, and this accords with the reason of the matter. Knowing, or having reason to know, that his land is in the possession of another, the true owner should be barred by reason of his laches in asserting his own right of possession, unless he can show that he was induced so to do by the possessor's recognition and admission of his rights. In some cases this view has been adopted, that the possession will, in the absence of countervailing evidence, be presumed to be hostile,53 and this view would seem to be more or less involved in the numerous decisions54 that, by reason of a particular relation, such as that of landlord and tenant or that of trustee and cestui que trust, the possession is prima facie not hostile or adverse, this apparently implying that, in the absence of such a relation, the possession is prima facie hostile, or at least that it is not prima facie lacking in hostility. It has, however, frequently been asserted that the person claiming by force of the statute of limitations has the burden of

53. Boone v. Chiles, 10 Pet. 177, 223; Alexander v. Wheeler, 69 Ala. 332; Hammond v. Crosby,

68 Ga. 767; Craven v. Craven, 181 Ind. 553, 103 N. E. 333, 105 N. E. 806; Frazier v. Morris, 161 Ky. 72, 170 S. W. 496; Zabriska's Succession, 119 La. 1076, 44 So. 893; Greene v. Anglemire, 77 Mich. 168, 43 N. W. 772; Davis v. Bowmar, 55 Miss. 742; Monnot v. Murphy, 207 N. Y. 240, 100 N. E. 742; Bryan v. Spivey, 109 N. C. 57, 13 S. E. 766; Neel v. Mcelhenny,

69 Pa. St. 300; Satcher v. Grice,

53 S. C. 126, 121 S. E. 3; Toltec Ranch Co. v. Babcock, 24 Utah, 183, 606 Pac. 876; Morse v. Churchill, 41 Vt. 649; Illinois Steel Co. v. Budzisz, 106 Wis. 499, 48 L. R. A. 830, 80 Am. St. Rep. 54; 81 N. W. 1027, 82 N. W. 534.

That the user of another's land is presumed to be adverse, for the purpose of the creation of a prescriptive right in the nature of an easement, see post, Sec. 519, note 73.

54. Post, Sec. 513.

55. Ricard v. Williams, 7 Wheat. 121 (semble); Davis v. Caldwell, 107 Ala. 526, 18 So. 103; Beasley v. Howell, 117 Ala. 499, 22 So. 989; Love v. Cowger, 130 Ark. 445, 197 S. W. 853; Janke v. Mcmahon, Cal. App., 133 Pac. 21; Russell v. Davis, 38 Conn. 562; Barrs v. Brace, 38 Fla. 265, 20 So. 991; Mc-cullough v. East Tennessee, etc. R. Co., 97 Ga. 373, 23 S. E. 838; Thompson v. Toledo, St. Louis & W. R. Co., 271 I11. 11, 110 N. E. 901; Benedict v. Bush-nell, - Ind. App. - , 117 N. E. 267; Mcclenahan v. Stevenson, 118 Iowa, 106, 91 N. W. 925; Edwards v. Fleming, 83 Kan. 653, 33 L. R. A. (N. S.) 923, 112 Pac. 836; Mounts v. Mounts, 155 Ky. 363, 159 S. W. 819; Mccune v. Goodwillie, 204 Mo. 306, 102 S. W. 891; Smith v. Sedalia. 152 Mo. 283, 48 L. R. A. 711, 53 S. W. 907; Weeping Water v. Reed, 21 Neh. 261, 31 N. W. 797; Johnson v. Atlantic R. Co., 73 N. J. L. 767, 64 Atl. 1061; Licari v. Carr, 84 N. J. L. 345, 86 Atl. 421; Heller v. Cohen, 154 N. Y. 299,

48 N. E. 527; Rathbunville Union Cemetery Ass'n v. Betson, 208 N. Y. 364, 101 N. E. 892; Monk v. Wilmington, 137 N. C. 322, 49 S. E. 345; Johns v. Johns, 244 Pa. 48, 90 Atl. 535; Smith v. Estill, 87 Tex. 264, 28 S. W. 801.

56. 4 Wigmore. Evidence, 55 2485-2490.

56a. See e. g. Jones v. Temple. 117 Ark. 579, 176 S. W. 143; Tippenhauer v. Tippenhauer. L58 Ky. 639, 166 S. W. 225; Spicer v. Spicer, (Mo.), 155 S. W. 832; Vanderbilt v. Chapman. 172 N. C. 809, L. R. A. 1917r 143, 94 S. E. 703; Stokes v. Murray, 95 S. C. 120, 78 S. E. 741; Village Mills Co. v. Houston Oil Co., - (Tex.) - 186 S. W. 785; People's Savings Bank v. Bufford, 90 Wash. 204, 155 Par. 1068. Occasionally the- statute in terms places the burden of proof on the party asserting adverse possession. Blue Ridge Land Co v Floyd, it;: N. C 686, 83 S. E 687, 88 S. E. 862; Sheppick v. Sheppick, 44 Utah, 131, 138 Pac.

When possession was taken under circumstances which ordinarily give rise to a presumption that it is not adverse, the burden is obviously upon the possessor of showing that,- by reason of the course of action adopted by him, such as denial of the title of the rightful owner, his possession has become adverse.57