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a purchaser to see that the title is defended by covenant of warranty. It is a part of the deed, and evidently concerns the land which is conveyed by it. Perliaps it might be important the release should be recorded, to protect the warrantor against the suit of a subsequent purchaser without actual notice of the release. This release was duly executed and acknowledged nearly a month before the deposition was taken. It was evidence, therefore, under the recording acts, that John B. Quick had been released from all liability quoad the land in suit.

The second assignment of error can not prevail; the objection to the offer was general, and the evidence subsequently received took away the ground of objection, if any.

The third assignment has more substance. The defendant offered in evidence the deposition of John M. Cooper and a copy of the articles of association referred to in it, which was objected to, on the ground that there was no evidence of the loss or destruction of the original articles. Cooper states expressly that the original articles were sent, he thinks, several years ago, to some attorney in Wilkes barre, and have since been lost; that diligent search has been made for them and they could not be found; that Exhibit B attached to the deposition is a verbatim copy of the articles of association. In the absence of any cross-examination to explain, or other evidence to disprove the statement, it is difficult to see why the proof of loss and search was insufficient. The testimony of E. B. Harvey, given afterward by defendant, certainly corroborates rather than contradicts Cooper's testimony. But resting on Cooper's testimony as the offer did, it seems to have been error to reject it. No objection was made to the proof of the existence of the original articles. The 4th and 5th errors follow that just considered. The 6th assignment must be snstained. The objection to the testimony of Jacob R. Quick as to the conversation between P. A. L. Quick and Mr. McClintock, was rested expressly on the ground that the question Was leading in its form. It clearly was so, as it indicated just the answer the party desired.

. This is the rule, as to what are leading questions : Selin v. Snyder, 7 S. & R., 166; Sum

Wallace, 9 Watts, 163. The form of the question

“ whether P. A. L. Quick asked McClintock if his rights would be in any manner affected by that suit, and that Mc



mers v. was,

Clintock replied that they would not, and that he might go home.” The purpose here was to get McClintock’s reply to P. A. L. Quick's question, and instead of asking what he said in reply, the answer to be made by McClintock is immediately embodied in the question, indicating at once the answer expected. The objection was made and the ruling excepted to, and we can not deny the party the benefit of it. The only other question that we need consider is that raised in the 9th, 11th, and 13th assignments of error, as to the evidence sufficient to prove an ouster between tenants in common. The pith of the judge's charge is, that from an open, notorions and uninterrupted possession of Jolin B. Quick and P. A. L. Quick, through their tenants, for twenty-one years, claiming the whole in their own right, leasing the property to tenants as their own, and taking the rents and profits exclusively, the jury might infer an ouster of their co-tenants. This is the law as it has been held in this State since Frederick v. Gray, 10 S. & R., 182; Mehafy v. Dobbs, 9 Watts, 377; Law v. Patterson, 1 W. & S., 184; Bolton v. llamilton, 2 W. & S., 294; Calhoun v. Cook, 9 Barr, 226; Keyser v. Evans, 6 Casey, 507; Rider v. Maul, 10 Wright, 376. A mere reception of the profits and claim of the land will not alone prove an onster. There must be positive acts or a line of conduct indicating an intention to exclude the co-tenants. This has been said in Hart v. Gregg, 10 Watts, 185; Forward v. Deetz, 8 Casey, 6); Bennet v. Bullock, 11 Id., 30+; Tulloch v. Worrall, 13 Wright, 133.

In none has it been more strongly asserted than in Ilart v. Gregg, but a dictum in that case, somewhat wider than was called for, was afterward criticised and qualified by Chief Justice Gibson, in Bolton v. IIamilton, 2 W. & S., 299, and Calhoun v. Cook, 9 Barr, 227. What is said by Justice Thompson in Forward v. Deetz had reference to the facts of that case, and was properly qualified by himself, in saying that it was not intended to assert there, that an ouster may not be presuined from great lapse of time and the circumstances. Every case must be judged of by its facts. It is therefore certainly the law that open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the whole land as his own, and taking the

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whole profits exclusively to himself, is evidence froin which a jury may draw the conclusion of an ouster and an adverse possession. The distinction is that it does not afford a legal presumption, which would entitle the court to withdraw the question from the jury, and instruct them that they must infer an onster, but it constitutes a natural presumption, or is competent evidence, from which the jury may infer an ouster and adverse possession, if not successfully rebutted. But the question of fact must be determined by the jury, for it may appear from all the circumstances that the possession is not adverse, notwithstanding the long-continued reception of the profits. Every case depends on its own circumstances, as to the strength of the conviction it produces, and hence it must be left to the jury under a proper instruction, to determine whether the fiduciary character of the relation has been determined by a decisive act, or by a course of conduct bringing home notice to the party to be affected by it, of the change in the character of the possession. In the cases of express trust, or where there is a direct confidence created by the instrument, as between trustee and cestui que trust, landlord and tenant, mortgagor and mortgagee, etc., the evidence to show a denial of the relation, will always have to be stronger to produce conviction, than in those where the relation is less direct and confidential, as between co-tenants: Rush v. Barr, 1 Watts, 110; Martin v. Jackson, 3 Casey, 504; McMasters v. Bell,

v 2 Penna., 180; Brandon v. Bannon, 2 Wright, 63. Yet in all cases the rule is the same, to wit: that the relation must appear to have been severed by such positive acts, or continued conduct as tend to bring home notice to the party to be affected, of the change in the relation, and that the


is adverse to him.

They accurate, manner.

The remaining assignments of error need no special notice.

are not sustained. As a whole, the charge was fair and

and the case was left to the jury in a very intelligible

Judgment reversed and a venire facias de novo awarded.


(44 California 646. Supreme Court, 1872.)


Prescription-Ditch property. Five years continuous possession of a

ditch, open, notorious and exclusive, and known to the adverse party, gives title by prescription.

Appeal, District Court, Second Judicial District, County of Butte.

The ditch in controversy lies in Butte county, and takes the water of Butte Creek, near Neal's saw-mill, and extends down the banks of Butte Creek, and over the divide between little Butte Creek and Dry Creek, to Dry Creek; thence along DryCreek, over the mountain, to St. Clair Flat, and thence along the foot of Table Mountain to Thompson's Flat. It was excavated over public lands, and crossed the northeast quarter of the southwest quarter, and the north half of the southeast quarter, and the southeast quarter of the southeast quarter of section twenty-three, and the northwest quarter of the northwest quarter of section twenty-five, township twenty north, range three east, Mount Diablo, base and meridian. These were the lands the plaintiff purchased from the United States. It was excavated, and the water of the creek appropriated in accordance with the local customs, and the decisions of the courts of this State, and the water was used for mining purposes. It cost $20,000. Judgment for defendants. Plaintiff appealed. The other

. facts appear in the opinion.

Burt & Sexton, for appellant.

HUNDLEY & MARTIN, for respondents.

By the Court, RHODES, J.:

This is an action to prevent the defendants from maintaining, and to cause to be abated as a nuisance, a water ditch which was constructed, and was and still is used, to convey water for mining purposes.

* Ante p. 196.

The ditch was constructed between 1856 and 1857, and all the right or title therein which was acquired by the person who constructed it is vested in the defendants. The plaintiff acquired the title to certain tracts of land over which the ditch runs, under two patents from the United States, which were issued to the plaintiff's grantor in 1860 and 1861, and a duplicate certificate and receipt issued by the receiver of the Land Office, at Marysville, to the plaintiff's grantor in 1864. The defendants pleaded, among other defenses, the statute of linitations. The action was commenced April 4th, 1870. The defendants had judgment.

The court found for the defendants on the issue of adverse possession, and although on some points there was a conflict in the evidence, there was sufficient evidence, if the court gave the greater credit to the testimony of the defendants, to justify the finding. That the use commenced and continued up to the commencement of the action under a claim of right, and that it was peaceable, without interruption, open, notorious, and exclusive, and that it was maintained with the knowledge of the plaintiff and his grantors after they acquired title, the evidence leaves but little doubt, and justified the court in finding the adverse possession-or prescription, as it is usually denominated, when the issue relates to an ease


The other points need not be noticed, as the finding on that issue is decisive of the case.

Judgment and order affirmed.


(44 Georgia, 576. Supreme Court, 1882). .

Occupation from day to day, not essential. The court charged that if

the land was chiefly valuable for timber and mining, its use for such purposes was sufficient as the basis of a prescriptive title, but added that such use “must be continuous, that is, from day to day, month to month, and from year to year'': Held, error, upon the facts of the case.

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