according to the usual manner of business.

Miesen v. Can

Possession of a

field, 64 Minn. 513 (67 N. W. Rep. 632). portion of the land described in a deed under which the grantee claims title is constructive possession of the whole of the land described unless some portion thereof be in actual possession of another. But where there is a paper title it requires very distinct occupancy to extend the possession beyond the limits described in the deed. Fullam v. Foster, 68 Vt. 590 (35 Atl. Rep. 484).

Sec. 28. Proof of adverse possession-Sufficiency of. It is held that evidence of adverse possession must be clear and positive, and that it should be construed strictly, and that all reasonable presumption be made in favor of the true owner. Lampman v. Van Alstyne, 94 Wis. 417 (69 N. W. Rep. 171); Ryan v. Schwartz, 94 Wis. 403 (69 N. W. Rep. 178). In proving adverse possession the acts of the parties claiming it are material and not those of the party against whom it is asserted. Beccher v. Ferris, 110 Mich. 537 (68 N. W. Rep. 269). Where the payment of taxes is essential to the acquirement of title by adverse possession, proof of such payment must be clear and convincing. Burns v. Edwards, 163 Ill. 494 (45 N. E. Rep. 113). In order to give the character of the adverse to a holding, there must be some positive act and not merely a failure to recognize the rights of the holder of the legal title. Trustees of Sharp St. Station M. E. Church v. Rother, 83 Md. 289 (34 Atl. Rep. 843). For cases which depend upon particular facts and illustrate what is sufficient to acquire a title by adverse possession, see Dice v. Brown, 98 Ia. 297 (67 N. W. Rep. 253); Carter v. Chevalier, 108 Ala. 563 (19 So. Rep. 798); Michel v. Stream, 48 La. 341 (19 So. Rep. 215); Newton v. Louisville & N. R. Co., 110 Ala. 474 (19 So. Rep. 19); Davidson v. Alabama Iron & Steel Co., 109 Ala. 383 (19 So. Rep. 390).

Sec. 29. Title by-Elements necessary. In a recent case the supreme court of Illinois say: "It is well-settled law that title to lands derived from the United States draws the seisin or legal possession to it, so that one who has such title is by force thereof in possession until there is an ouster or

disseisin. The adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it must include these five elements: It must be (1) hostile or adverse; (2) actual; (3) visible, notorious and exclusive; (4) continuous; and (5) under a claim or color of title. * * * Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner; and the proof to establish it must be strict, clear, positive, and unequivocal." Zirngibl v. Calumet & C. C. & D. Co., 157 Ill. 430 (42 N. E. Rep. 431). A possession which is held in direct violation of a decree of a competent court adjudging such possession unlawful, cannot be the basis of title by adverse possession. Oberein v. Wells, 163 Ill. 101 (45 N. E. Rep. 294). The court say: "Neither a party nor those claiming under him can be heard to say that a possession of land which is expressly held by a court of competent jurisdiction to be a wrongful possession will afterwards be held by a court of equity to be one recognized as sufficient to create a bar under the statute of limitations." In order to establish title to real property by virtue of the operation of the statute of limitations, there must have been maintained by the party asserting it an actual, continuous, notorious and adverse possession of the premises under claim of ownership during the full period required by the statute. Twohig v. Leamer, 48 Neb. 247 (67 N. W. Rep. 152). Title cannot be acquired under the ten year prescription statute of Louisiana without showing some act of corporal possession; the mere payment of taxes on the land alone is not sufficient. What constitutes corporal possession is governed to a great extent by the uses for which the land is destined and its nature. Chamberlin v. Abadie, 48 La. 587 (19 So. Rep. 574). When a line fence is determined by survey and acted upon by both parties, and possession taken and held by each for a period of more than ten years, in Oregon, the possession of each ripens into a title which cannot be affected by a subsequent survey showing former survey incorrect. Pearson v. Dryden, Ore.

(43 Pac. Rep. 166). Citing, Joy v. Stump, 14 Ore. 361 (12 Pac. Rep. 929). The fact that a vendor executes a deed for a portion of a larger tract of land to his vendee, does not prevent the latter from acquiring title to the remainder of the

tract by adverse possession. Handley v. Barrett, 176 Pa. St. 246 (35 Atl. Rep. 133).

Sec. 30. Title by-As to necessity of good faith on the part of the claimant-Conflict of authorities. It is held that title by adverse possession may be acquired without regard to the good faith of the claimant. It is not necessary that he should even believe that his claim of title is valid. Lapman v. Van Alstyne, 94 Wis. 417 (69 N. W. Rep. 171). The court say: "On this subject there is a conflict of authority, of such long standing and in respect to so many phases of the question, that it is useless to try to reconcile the various adjudications. Such conflict is not merely between different jurisdictions, but is found in the adjudications of the same court, and it may be said that this court is not entirely free from that criticism. This has grown out of the gradual development of the law from an early period, when it was quite generally held that only occupants in good faith could acquire title by adverse possession, to the rule obviously prescribed by the statute, but reluctantly adopted by the courts, doing entirely away with all necessity for judicial investigation into the hidden motives of the entry or possession, and all questions of good faith respecting the same, and substituting instead the rule that open, exclusive, continuous, unin. terrupted, and hostile possession, for the statutory period, whether in good faith respecting boundaries or title, or whether applied to actual possession or actual possession of part accompanied by constructive possession of the balance included in a written instrument upon which the claim of title is based, does the work. The rule that good faith in respect to the validity of the claim of title must characterize the entry and possession is still held in some jurisdictions; in others it is held that good faith only applies to constructive possession; and in still others, while the element is held to be indispensable, it is so limited as to be practically done away with. In the late work by Newell on Ejectment (page 788) it is said: 'Good faith in the claimant is an indispensable element in the law of adverse possession. But by the term "good faith" as used in this connection, it must not be understood that it involves an inquiry into the party's belief

in the character or strength of his title, or whether in fact, he has any title. What is meant by the term is simply good faith in claiming possession and title, or, in other words, a real intention to claim the land as his own, distinct and hostile to the title of the owner.'

"This only illustrates the tenacity with which text writers, as well as courts, have clung to the term ' 'good faith' as an element of adverse possession, in their efforts to harmonize the holdings of different courts on the subject. The case which Mr. Newell cites as authority for the rule as he states it is Davis v. Hall, 92 Ill. 85, and that does not support such rule at all, but says that good faith in such a case requires a sincere belief in the claimant that he is the owner of the premises. To say that good faith is an essential element, and then to limit it to mere intent to claim title, is to eliminate it altogether, as the intent to claim title may exist entirely independent of any element of good faith, as the term has universally been understood. This court early laid down the rule that the claimant must enter bona fide, believing in good faith that the land is his, and that he has a title. Woodward v. McReynolds, 2 Pin. 268, following Livingston v. Iron Co., 9 Wend. 518, which was overruled in the leading case of Humbelt v. Trinity Church, 24 Wend. 589, holding that bona fides is never necessary in adverse possession. That court later, in Crary v. Goodman, 22 N. Y. 177, tried to harmonize Livingston v. Iron Co. with Humbelt v. Trinity Church, by drawing a distinction between the former, which arose under the Champerty Act, and the latter, which depended on the statute of limitations. But later, in Sands v. Hughes, 53 N. Y. 296, this distinction was doubted, and so the law remains in the state of New York. In the opinions of this court, since Woodward v. McReynolds, expressions are frequently found which apparently support the doctrine of that case. In Watts v. Owens, 62 Wis. 512 (22 N. W. Rep. 720)-opinion by Mr. Justice Orton,-it is said: The animus or intent with which the entry is made must be bona fide,-an entry believing in good faith that the land is his, and that he has title;' citing Livingston v. Iron Co., supra. But Mr. Justice Orton's observation in that regard was not necessary to the decision of that case, and appears to have been a personal expression of

opinion, and not an announcement of the law as held by the court. That it was not the doctrine of this court at that time, and that Woodward v. McReynolds had long prior thereto been overruled, though not by direct reference, there is abundance of evidence. In North v. Hammer, 35 Wis. 425, it was said, in effect, that if the party enters, claiming title exclusively, and remains in the open, uninterrupted, exclusive possession, so claiming title, for the statutory period, that is enough, whether the title is good or not, and without regard to the claimant's belief on the subject. The same doctrine is found in McMillan v. Wehle, 55 Wis. 685 (13 N. W. Rep. 694), and in Hacker v. Horlemus, 69 Wis. 280 (34 N. W. Rep. 125). In the late case of Railroad Co. v. Groh, 85 Wis. 641 (55 N. W. Rep. 714), Lyon, C. J., said that, to maintain title by adverse possession, good faith is not essential. It is sufficient that the entry of the disseisor is hostile to all the world, that he intends to hold the land as his own, and does hold it for the statutory period of limitations. To be sure, that was said with reference to an entry and claim of title merely, where the possession was actual, and not a claim under color of title, or a claim under color of title combining actual possession of a part with constructive possession of the balance described in the written instrument upon which the claim was based, leaving an opportunity for argument that it does not apply to the latter class of cases; but the language is general, and it may be taken to be the established doctrine of this court that it applies to all cases of adverse possession under the statute of limitations of this state, whether founded upon claim merely, or upon color of title, and whether the possession be simply possessio pedis, or, in addition, a constructive possession, coextensive with the premises described in a written instrument constituting the color of title. By this, the plain words of the statute are construed according to the obvious legislative intent. There is no middle ground that can be resorted to on this subject. Good faith is an essential element of adverse possession under the statutes of limitations, or it is not. The controversy should be tested and determined by the language of the statutes. We do not find it there in any literal expression, or find anything to warrant a departure from the plain import of the words used.