Adverse Possession
(Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued, under an assertion or color of right on the part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2 Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364; 2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550. Actual possession is a pedis possessio which can be only of ground enclosed, and only such possession can a wrongdoer have. He can have no constructive possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
When the possession or enjoyment
has been adverse for twenty years, of which the jury are to judge from the circumstances
the law raises the presumption of a grant. Ang. On Wat. Courses, 85, et seq. But this
presumption arises only when the use or occupation would otherwise have been unlawful. 3
Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R. 589; 4 S. & R. 456.
See 2 Smith's Lead. Cas. 307416.
There are four general rules by
which it may be ascertained that possession is not adverse; these will be separately
considered.
When both parties claim under the
same title; as, if a man seised of certain land in fee, have issue two sons and die
seised, and one of the sons enter by abatement into the land, the statute, of limitations
will not operate against the other son; for when the abator entered into the land of his
father, before entry made by his brother, the law intends that he entered claiming as heir
to his father, by which title the other son also claims. Co. Litt s. 396.
When the possession of the one
party is consistent with the title of the other; as, where, the rents of a trust state
were received by a cestui que trust for more than twenty years after the creation of the
trust, without any interference, of the trustee, such possession being consistent with and
secured to the cestui que trust by the terms of the deed, the receipt was held not to be
adverse to the title of the trustee. 8 East. 248.
When, in contemplation of law, the
claimant has never been out of possession; as, where Paul devised lands to John and his
heirs, and died, and John died, and afterwards the heirs of John and a stranger entered,
and took the profits for twenty years; upon ejectment brought by the devisee of the heir
of John against the stranger, it was held that the perception of the rents and profits by
the stranger was not adverse to the devisee's title; for when two men are in possession,
the law adjudges it to be the possession of him who has the right. Lord Raym. 329.
When the occupier has acknowledged
the claimant's titles; as, if a lease be granted for a term, and, after paying the rent
for the land during such term, the tenant hold for twenty years without paying rent, his
possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv. Inst.
n. 219394, 2351.
