ADVERSE POSSESSION
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ADVERSE POSSESSIONADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as
lies in grant, under such circumstances as indicate that such enjoyment hasbeen commenced and continued, under an assertion or color of right on thepart of the possessor.
3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2Serg. & 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
constructivepossession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479. 2. When the possession or enjoyment has been adverse for twenty years,of which the jury
are to judge from the circumstances the law raises thepresumption of a grant. Ang. on Wat. Courses, 85, et seq. But thispresumption arises only when the use or occupation
would otherwise have beenunlawful. 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. 307-416. 3. There are
four general rules by which it may be ascertained thatpossession is not adverse; these will be separately considered. 4.-1. When both parties claim under the same title;
as, if a manseised of certain land in fee, have issue two sons and die seised, and oneof the sons enter by abatement into the land, the statute, of limitationswill not operate
against the other son; for when the abator entered into theland of his father, before entry made by his brother, the law intends thathe entered claiming as heir to his father, by
which title the other son alsoclaims. Co. Litt s. 396. 5.-2. When the possession of the one party is consistent with thetitle of the other; as, where, the rents of a trust state
were received by acestui que trust for more than twenty years after the creation of the trust,without any interference, of the trustee, such possession being consistentwith and
secured to the cestui que trust by the terms of the deed, thereceipt was held not to be adverse to the title of the trustee. 8 East. 248. 6.-3. When, in contemplation of law,
the claimant has never been outof 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, andtook the profits for twenty years; upon ejectment brought by the devisee ofthe heir of John against the stranger, it was held that the perception ofthe rents and
profits by the stranger was not adverse to the devisee'stitle; for when two men are in possession, the law adjudges it to be thepossession of him who has the right. Lord Raym.
329. 7.-4. 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 landduring such term, the tenant
hold for twenty years without paying rent, hispossession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv.Inst. n. 2193-94, 2351.
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