76. Goodson v. Brothers, 111 Ala. 589, 20 So. 453; Shipwith v. Martin. 50 Ark. 141. 6 S. W

Sion such as ordinarily only an owner would do,77 such as the making of improvements,78 or the payment of taxes.79 In other words the claim of title is to be established by evidence of the same character as is ordinarily relied on to establish the hostile or adverse character of the possession,80 a consideration which harmonizes with the view above suggested, that in asserting the necessity of a claim of title, the courts ordinarily intend merely to restate the requirement of hostility or adverseness of possession.

514; Wiggins v Brewster, 131

Ga. 162, 62 S. E 40 Haddock v. Leary 148 N. C. 378, 62 S.

- Recognition of title in third person. Apart from the fact that, as involving an affirmative fact, it is calculated to place upon the person in possession the burden of proof, and from the consideration that the presentation of this additional issue is calculated to confuse the jury, it does not seem that the assertion of the

E. 426; Power v. Kitching, 10 N. D. 254, 88 Am. St. Rep. 691, 86 N. W. 737.

77. Kidd v. Browne, - Ala.-, 76 So. 65; Lyons v. Stroud, 257 111. 350, 100 N. E. 973; Rennert v. Shirk, 163 Ind. 542, 72 N. E. 546; Craven v. Craven, 181 Ind.' 553, 103 N. E. 333; Woodcock v. Crosby's Unknown Heirs, 92 Neb. 723, 139 N. W. 646; Smith v. Badura, 70 Ore. 58, 139 Pac. 107.

In New York the statute requires possession under claim of title, but it is said that the actual possession and improvement of the premises, as owners are accustomed to possess and improve their estates, without any payment of rent or recognition of title in another will, unless rebutted by other evidence, establish the fact of a claim of title. Barnes v. Light, 116 N. Y. 34, 22 N. E. 441; Monnot v. Murphy, 207 N. Y. 240, 100 N. E. 742.

78. Normant v. Eureka Co., 98 Ala. 181, 39 Am. St. Rep. 45, 12 So. 454; Lick v. Diaz, 44 Cal. 479; Grim v. Murphy, 110 111. 271; Illinois Cent. R. Co. v. Houghton. 126 111. 233, 1 L. R. A. 213, 9 Am. St. Rep. 581; Ren-neot v. Shirk, 163 Ind. 542, 72 N. E. 546; Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060; Barnes v. Light, 116 N. Y. 34; Rowland v. Williams, 23 Ore. 515. 32 Pac. 402; La Frambois v. Jackson, 8 Cow. (N. Y.) 603.

79. Frick v. Sinon, 75 Cal. 337, 7 Am. St. Rep. 177, 17 Pac. 439; Beecher v. Ferris, 117 Mich. 108, 75 N. W. 294; Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Allen v. Mansfield, 108 Mo. 343, 18 S. W. 901; Dredla v. Patz, 78 Neb. 506, 111 N. W. 136; Thompson v. Burhans, 79 N. Y. 93; Paine v. Hutchins, 49 Vt. 314.

80. Ante, Sec. 503, notes 49-52.

Requirement of claim of title rather than mere adverse-ness or hostility of possession will, in the ordinary case, affect the result. That is, if the jury can find that the possession is adverse, it will probably, from a consideration of the same evidence, find that it is under claim of title. In one case, however, the assertion of this requirement might become of primary importance, that is, when the wrongful possession was taken under the mistaken impression that the title is in a third person, and with full recognition of the supposed rights of such person. If possession adverse to the whole world 8l is necessary to make the statutory bar effective as against the true owner, the possession in the case supposed is insufficient, although it be clearly adverse to the rightful owner. What is in substance this state of facts has been presented in a number of cases in which one took and held possession of vacant lands belonging to another, under the impression that it belonged to the government. In the majority of these cases it has been decided that the statute of limitations runs under such circumstances,82 while in others the contrary view has been adopted, on the ground that there is no claim of title by the person in possession, or, as otherwise expressed, his possession is not adverse to the whole world.83 If claim of title is necessary to enable the stat81. Ante, Sec. 503, note 47.

82. Page v. Fowler, 28 Cal. 611; Hayes v. Martin, 45 Cal. 559; Blumer v. Ohio Land Co., 129 Iowa, 32, 105 N. W. 342; Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664; Maas v. Burdetzke, 93 Minn. 295, 106 Am. St. Rep. 436, 101 N. W. 182; Boe v. Arnold, 54 Ore. 52, 20 Ann. Cas. 533, 102 Pac. 290; Sharpe v. Catron, 67 Ore. 368, 136 Pac. 20; Smith v. Jones, 103 Tex. 632, 31 L. R. A. (N. S.) 150, 132 S. W. 469; Price v. Eardley, 34 Tex.

Civ. App. 60, 77 S. W. 416; True-heart v. Graham, - Tex. Civ. App. - , 141 S. W. 281; Francoeur v. Newhouse, 43 Fed. 236; Northern Pac. R. Co. v. Kramcli, 52 Fed. 911. See editorial notes, 9 Columbia Law Rev. 640; 12 id. 364; 10 Mich. Law Rev. 406.

83. Hunnewel] v. Burchett, 152 Mo. 611, 54 S. W. 187; Alt Bchul v. O'neill. 35 Ore 202, 58 Pac. 95; Schleicher v. Gatlin, 85 Tex. 270, 20 S. W.120; Mc-naught-collin8 Imp. Co. v. May. 52 Wash. 632, 101 Pac. 237 ute to run, it is difficult to see how it can run when the possessor admits the title to be in the government, even though such admission is based on a mistake. The statute does run in such case, it is submitted, for the reason that the possession is adverse to the rightful owner, and the latter is not excused from asserting his rights within the limitation period by the fact that the adverse possession is accompanied by an assertion of title in a third person. That such a view is incompatible with the asserted requirement of claim of title by the possessor would seem to be merely an additional reason for questioning whether claim of title is properly necessary in order that the statute may run.

The necessity that the possession be under claim of title has been referred to as ground for holding that the possession of a "mere squatter" is insufficient to give title under the statute of limitations.84 The expression "squatter'5 is somewhat lacking in certainty, but it ordinarily means one who, while in possession of another's land, admits that the title is in another person, even though without knowledge of such person's identity. There is in such case no claim of title by the person in possession, but even apart from that consideration, the possession would seem, by reason of the recognition of another's title, to be deprived of the element of hostility or adverseness, conceding, that is, that an acknowledgment of another's title will operate to deprive possession of the element of adverseness, although such acknowledgment is not made directly to such other.85

Skanski v. Novak, 84 Wash. 39, 146 Pac. 160. See editorial notes 5 Columbia Law Rev. 605; 18 Harv. Law Rev. 180.

84. Gay v. Mitchell, 35 Ga. 139, 89 Am. Dec. 278; Bell v. Fry, 5 Dana (Ky.) 341; Blake v. Shiver, 27 Wash. 593, 68 Pac. 330; Jasperson v. Scharnikow, 150 Fed. 571; Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255. See Baber v. Henderson, 156 Mo. 566, 79 Am. St. Rep. 540, 57 S. W. 719. But in Patterson v. Reigler, 4 Pa. St. 201, that the person in possession acknowledged that he had no title to the land was held not to prevent the running of the statute in his favor, he having "entered to hold the land as long as he could."

In Northern Pacific Ry. Co. v. Concannon, 75 Wash. 591, 135 Pac. 652, the fact that the one in possession made valuable improvements on the land was regarded as showing that he was something more than a mere squatter, for the purpose of the statute of limitations.

- Claim of easement. The statement occasionally made that possession under a claim to a mere easement does not, although continued for the statutory period, confer title to the fee,86 involves the misconception that one merely exercising, or undertaking to exercise, 'an easement in land, has possession, or may have possession, of the land, He does not acquire title to the land by adverse possession, for the reason that he never had possession, adverse or nonadverse.87

- Claim of fee simple. Applying and extending the asserted requirement of claim of title, it has occasionally been said that the statute runs in favor of the person in possession only if he claims title in fee.88 In so far as this may mean that the statute does not inn against the rightful owner, if the possessor recognizes

85. Post, Sec. 507. note 38.

86. Dothard v. Denson, 75 Ala. 482; Indianapolis R. Co. v. Ross, 47 Ind. 25. See O'banion v. Cunningham, 168 Ky. 322, Ann. Cas. 1917A, 1017, 182 S. W. 185, Roe v. Strong, 107 N. Y. 350, 14 N. E. 294.

87. But in Long Island Railway Co. y. Mulry, 212 N. Y. 108, 105 N. E. 806, it seems to be held that a railroad company is in possession though asserting an easement merely.

88. Harden v. Watson, 104 Ark. 641, 148 S. W. 506; Iona v. di, 16 Hawaii, 432; Leport v. Todd, 32 N. J. L. 131; Myera v. Folkman, 89 N. .J. L 390, 99

Atl. 97; Bedell v. Shaw, 59 N. Y. 46.

In New York the statute, which asserts the necessity of claim of title in order thai the possession may be adverse, has been regarded as requiring a claim of title in fee, so that if the person in possession claims merely an estate for years, the statute not run in his favor Bedell v.

Shaw, 69 N. V. 46, Hill a claim by a railroad company to a righl oi way merely has been regard ed as so closely equivalent to a claim of title in fee as to enable the statute in run. Long Island R. Co. v. Mulry. 212 N. J .108, 106 N. E 806.

The fee simple as being in such owner, there can be no question as to the correctness of the statement. But in so far as it may mean more than this, it would appear to be open to question, even conceding that some claim of title is necessary. Opposed to such a view are the cases, hereafter referred to,88a in which a conveyance or devise having been made to a person for life with remainder to another, entry and-possession by the former were held to enure to the benefit of the latter, so as to vest in him a fee simple estate. And the possession of one holding under a lease for years, though this involves no claim on his part to the fee simple, is sufficient as against the rightful owner.89