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Dyer et al. v. Eldridge et al.

forty years; that he thought the various owners farmed the land up to the fence, and supposed the fence was on the line until the present trouble arose.

William Woods, recalled, again testified as to the occupancy of the farm to the fence, under claim of title, by James K. Woods (grantor to appellees), James Matthews, and Alfred Woods, witness's father; that he had seen stock in there almost every year from the time he could remember.

Robert Lawrie, surveyor, testified, that the farms indicated that the fence was the line; that it was the division between the farms; that the disputed land was pastured.

As shown by the record, it is clear that for nearly a half century appellees Eldridge and their grantors, direct and remote, have openly, visibly, notoriously and adversely occupied and farmed the lands in controversy south of the fence.

Appellants' counsel insist that it is the rule of law that plaintiffs must have had either color of title, or that they and their grantors must have claimed title for more than twenty years. In this counsel are, in part, mistaken. No color of title is essential. It is not, and never has been, the law of this State that there must be color of title before an adverse possession will ripen into a title. Collett v. Board, etc., 119 Ind. 27; Riggs v. Riley, 113 Ind. 208; Law v. Smith, 4 Ind. 56; O'Donahue v. Creager, 117 Ind. 372; Bell v. Longworth, 6 Ind. 273.

"Adverse user is such an use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. Such a use of the property continued without interruption for a period. VOL. 136-42

Dyer et al. v. Eldridge et al.

of twenty years or more, is equivalent to a grant. lin v. Whipple, 120 Ind. 596, 598.

"Now

Actual possession of lands under a claim of title is sufficient notice of such claim to put others upon inquiry as to the extent and nature of the claim. Meni v. Rathbone, 21 Ind. 454; Jeffersonville, etc., R. R. Co. v. Oyler, 60 Ind. 383; Tuttle v. Churchman, 74 Ind. 311; Jeffersonville, etc., R. R. Co. v. Oyler, 82 Ind. 394; Barnes v. Union School Tp., 91 Ind. 301; Campbell v. Indianapolis, etc., R. R. Co., 110 Ind. 490.

"In this country and in England the doctrine seems quite firmly established, that open, notorious, unequivocal and exclusive possession of real estate, under an apparent claim of ownership, is notice to the world of whatever claim the possessor asserts, whether such claim is legal or equitable in its nature." 4 Cent. L. J., 122.

"If knowledge is brought home to the purchaser that a third person is in the possession and apparent ownership of the land, it ought, under ordinary circumstances, to be deemed sufficient information to the second purchaser that the possessor is the owner of the fee." Vaughn v. Tracy, 22 Mo. 415 (422).

"When title is in controversy, it is to be shown by legal proof, and continued disseizin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence." Inhabitants of School District v. Benson, 31 Me. 381 (385).

Such title is so perfect that, according to Lord Chancellor Sudgen, a court of equity will compel specific performance of the contract of purchase. Scott v. Nixon, 3 Drury & Warren, 388.

That is, the title is transferred from the person who lost it to the person gaining it by the disseizin. Irish Soc. v. Richards, 4 Irish Eq. Rep. 179.

Dyer et al. v. Eldridge et al.

It (disseizin) operates, says Baron Parke, as “a parliamentary conveyance of the land to the person in possession." Jukes v. Sumner, 14 M. & W. 38 (41).

Exercising that dominion over the thing used, taking that use and profit it is capable of yielding in its present condition, such acts being so repeated as to show that they are done in the character of owner, and not of an occasional trespasser, constitute adverse possession. Baum v. Currituck, etc., Club, 2 S. E. Rep. 673 (675 and 676).

Actual occupancy, by residence, cultivation or inclosure, as in this case, is not required to constitute adverse possession. Cooper v. Morris, 7 Atl. Rep. 427.

The correct doctrine is declared in La Frombois v. Jackson, 8 Cowen, 588 (603), as follows: "The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estate, without any payment of rent, or recognition of a title in another, or disavowal of a title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner; and unless rebutted by other evidence, will establish the fact of claim of title."

The court further said: "Every possession, then, is adverse, and entitled to the peaceful and benignant operation and protecting safeguard of the statute, which is not in subservience to the title of another, either by a direct acknowledgment of some kind, or an open or tacit disavowal of right on the part of the occupant; and it is in the latter case only, that the law adjudges the possession of one to the benefit of another.'

In the case of Roots v. Beck, 109 Ind. 472, it is decided that an open, notorious, exclusive, uninterrupted, and adverse possession, continued for the period of twenty years, is effectual to confer a title on the person so oc

Dyer et al. v. Eldridge et al.

cupying, and it is not essential that such possession should have been under color of title.

In that case, it is said: "Some of the apparent confusion in the cases, which has been remarked upon, grows out of the difference between that peculiar hostile possession which formerly rendered conveyances executed by parties out of possession void, as respects persons occupying the land adversely, and that undisturbed possession which by the efflux of time, will ripen into a title. The former required possession under color of title. The latter might originate without claim or color of title. Any adverse possession, the effect of which is to oust the true owner, and give to him a right of action, sets the statute of limitations in motion. When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee. The only distinction which can be recognized between title acquired under the statute of limitations by adverse occupancy, under claim and color of title, and without such claim or color, is, that in the latter case title will only be coextensive with actual, visible, and continued occupancy, while in the former color of title may by construction embrace lands only part of which was thus actually occupied." State v. Portsmouth Savings Bank, 106 Ind. 435 (461).

The following cases also support the proposition that exclusive, open, undisputed, and continuous possession, enjoyment, and use of lands confer title on the occupant. Bales v. Pidgeon, 129 Ind. 548 (549); Me Whorter v. Heltzell, 124 Ind. 129 (131); Bowen v. Preston, 48 Ind. 367 (374); 3 L. Cases, Am. L. R. P., 125, 126.

The case of Brown v. Anderson,90 Ind. 93 (95), is directly

Dyer et al. v. Eldridge et al.

in point, and quite similar to the case at bar. The evidence showed that there had been, for a long time, some dispute as to the location of a division line. That for more than twenty years there had been standing a partition fence, and that the parties and those under whom they claimed title had respectively occupied and cultivated the land during the existence of said fence, on each side and up to the same as their own. The court, under such facts, held that the continuous occupancy and use of the land for twenty years, to the fence, which really was not the true boundary line, transferred the title to the occupant.

It will be remembered that Brackney testified that the fence in question marked the division line between his land and the farm of the appellees Eldridge, and that the land on each side had been used and occupied up to the fence.

The law is that the location of a division boundary fence, acquiesced in and acted upon, and the premises improved up to the line by each, for twenty years, becomes binding as the true line. Richwine v. Presbyterian Church, etc., 135 Ind. 80; Wingler v. Simpson, 93 Ind. 203, and cases there cited.

It is, indeed, axiomatic that acts are stronger talismans of intentions and beliefs than are words, and to them are we to look in settling the question of title. Guided by the evidence in this case, as to the acts performed, and applying the law thereto, the court could not have rendered a different judgment. But it is claimed that the court erred in excluding parol testimony of the contents of an agreement signed by the appellee Allen M. Eldridge, and others, for the survey of the lands in controversy.

Several reasons exist why this evidence was properly excluded. In the first place, it appears that the survey

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