Argument for Appellees.

of the land in controversy as is necessary to establish a title by adverse possession.

Even if it should be considered that the complainants have established a title to the property by adverse possession, yet they are not entitled to the relief prayed for in their bill. A party claiming title by adverse possession alone cannot maintain a bill against the original owners on the ground that their title is a cloud upon his own. Frost v. Spitley, 121

U. S. 552.

Those only who have a clear legal and equitable title to land connected with possession have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title. Orton v. Smith, 18 How. 263; Croat v. Brown, 11 Maryland, 158; Marks v. Main, 4 Mackey, 559, 567; Herrington v. Williams, 31 Texas, 448, 460; Holland v. Challen, 110 U. S. 15; Whitehead v. Shattuck, 138 U. S. 146; Gage v. Kaufman, 133 U. S. 471.

The proof shows the plaintiffs are out of possession, and they admit they have no legal title under the tax deed. Alexander v. Pendleton, 8 Cranch, 462; Peirsoll v. Elliott, 6 Pet. 95.

The court below in affirming the decree of the equity court followed its decision in Marks v. Main, 4 Mackey, 559. It is submitted that this decision of the District Court in Marks v. Main is clearly right, and when applied to the facts in these two cases the dismissal of these bills followed as a necessary consequence.

The counsel for complainants in their brief seek to distinguish these cases from Marks v. Main by the statement that "partial occupation, payment of taxes and constant exercise of dominion such as was usual with owners and adapted to the nature and condition of the premises during the twentythree years following 1861 were sufficient to continue and preserve the adverse character of a possession previously commenced by actual enclosure." They refer to the following authorities to sustain this position: Ellicott v. Pearl, 10 Pet. 412; Ewing v. Burnet, 11 Pet. 41; Fletcher v. Fuller, 120 U. S. 534.

The evidence shows no act of possession of the property

Argument for Appellees.

involved in these two suits (unless the payment of taxes can be so construed) since 1861.

Ellicott v. Pearl was a writ of right and did not involve the question of chancery jurisdiction. It decides that, when a party takes possession under a deed containing metes and bounds and builds on a part or encloses a part, the possession is of the whole tract included in metes and bounds.

Ewing v. Burnet was an action of ejectment, and the doctrine held (never seriously controverted) that to constitute adverse possession there need not be a fence or building, but for this purpose that visible and notorious acts of ownership are exercised over the premises.

Fletcher v. Fuller was an action of ejectment. In this case the court decides under what circumstances a deed may be presumed to have been given.

These cases have no bearing on the question of chancery jurisdiction.

In the 4th paragraph of the brief the proposition is laid down that "the relation of defendants to the premises and to the complainants authorizes the latter to seek relief in equity."

What is this relation? The defendants hold the absolute record title to this property. The complainants claim under a tax title admitted to be invalid and which is in fact void. The complainants have never been in possession, except so far as payment of taxes may constitute possession. Authorities are abundant and harmonious that payment of taxes and speaking publicly of the claim is not sufficient evidence of claim of right. Ewing v. Burnet, 11 Pet. 41; Keefe v. Bramhall, 3 Mackey, 551.

In Reed v. Field, 15 Vermont, 672, it was held that a tax deed of fifty years and payment of taxes under color of tax deed was not sufficient to show even color of title without showing validity of deed. In these cases the deed is admitted to be invalid.

See also Naglee v. Albright, 4 Wharton, 291; Chapman v. Templeton, 53 Missouri, 463; Angell on Limitation, § 396.

The case of Bunce v. Gallagher, 5 Blatchford, 48, cited in the brief, does not apply to these cases, because the jurisdiction in

Argument for Appellees.

that case was placed upon fraud, the well established ground of equitable jurisdiction.

The case of Allen v. Hanks, 136 U. S. 300, was an injunction on part of a married woman to stop the sale of her land, held as separate property, under executions for her husband's debts. The jurisdiction was maintained on the ground that she was in possession.

The case of Holland v. Challen, 110 U. S. 15, cited by counsel for complainants in their brief, is direct authority for the position assumed by defendants in these causes.

The relief was given in that case, but the court expressly puts its decision on a statute of Nebraska (quoted in the opinion of Justice Field) which authorized persons whether in possession or not to file a bill in equity for the purpose of quieting title to real estate. Justice Field proceeds to give the law on the subject prior to and independent of this statute. To entitle parties to relief independent of this statute, he says, page 19: "To entitle the plaintiff to relief in such cases the concurrence of three particulars was essential. He must have been in possession of the property, he must have been disturbed by repeated actions at law, and he must have established his right by successive judgments in his favor.” These three particulars do not concur in these cases— in fact, neither one exists. The old and familiar doctrine of equity has not been changed by statute in this district, and under authority of Holland v. Challen, the courts of equity have no jurisdiction over these cases.

Complainants' counsel, in their brief, further assert that no authority can be found to support the decision of the court below. Holland v. Challen is authority from this court for the doctrine which guided the court below to its decision. Other authorities are numerous, and the following cited: Clark v. Smith, 13 Pet. 195.

This was a case from Kentucky, the legislature of which had passed a law authorizing any person who was in possession of land, having already title thereto to summon into a court of chancery any other person holding any claim of title whatsoever for the purpose of examining and determining the

Opinion of the Court.

question of title and to remove the cloud upon the title of complainant. This court held that under the ordinary faculty of a court of chancery this relief could not be administered, but it was competent for the legislature of Kentucky to declare what is a cloud on the title and to authorize a court of chancery to clear up any such cloud. The jurisdiction was maintained expressly on the Kentucky statute.

In Starks v. Starrs, 6 Wall. 409, Mr. Justice Field, in delivering the opinion of the court, which was based upon a statute of Oregon, says:

"This statute confers a jurisdiction beyond that ordinarily exercised by courts of equity to afford relief in the quieting of title and possession of real property. By the ordinary jurisdiction of those courts suits would not lie for that purpose unless the possession of the plaintiff had been previously disturbed by legal proceedings on the part of the defendant and the right of the plaintiff had been sustained by successive judgments in her favor."

In Phelps v. Harris, 101 U. S. 370, Mr. Justice Bradley, in delivering the opinion of the court, again affirms that the ordinary jurisdiction of courts of equity, not enlarged by statute, does not embrace cases of this kind. See also United States v. Wilson, 118 U. S. 86.

These authorities sustain the decision of the court below, and it is believed that no case can be found which lays down a doctrine in conflict with it.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The title of the complainants is founded upon the adverse possession of themselves and parties, through whom they derive their interests, under claim and color of title, for a period exceeding the statutory time which bars an action for the recovery of land within the District of Columbia. The statute of limitation to such cases in force in the District is that of 21 James I, ch. 16. That statute, passed "for quieting of men's estates and avoiding of suits," among other things

Opinion of the Court.

declared that no person or persons should at any time thereafter make any entry into any lands, tenements or hereditaments but within twenty years next after his or their right or title shall thereafter have first descended or accrued to the same, and that in default thereof such persons not entering, and their heirs, should be utterly excluded and debarred from such entry thereafter to be made, any former law or statute to the contrary notwithstanding.

Twenty years is, therefore, the period limited for entry upon any lands within this District after the claimant's title has accrued. After the lapse of that period there is no right of entry upon lands against the party in possession, and all actions to enforce any such alleged right are barred. Complete possession, the character of which is hereafter stated, of real property in the District for that period, with a claim of ownership, operates therefore to give the occupant title to the premises. No one else, with certain exceptions—as infants, married women, lunatics and persons imprisoned or beyond the seas, who may bring their action within ten years after the expiration of their disability—can call his title in question. He can stand on his adverse possession as fully as if he had always held the undisputed title of record.

The decisions of the courts have determined the character of the possession which will thus bar the right of the former owner to recover real property. It must be an open, visible, continuous and exclusive possession, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but adversely to all titles and all claimants. In the present cases the adverse possession of the grantors of the complainants sufficient to bar the right of previous owners, is abundantly established within the most strict definition of that term.

The objection of the defendants to the jurisdiction of a court of equity in this case arises from confounding it with a bill of peace and an ordinary bill quia timet, to neither of which class does it belong, nor is it governed by the same principles. Bills of peace are of two kinds: First, those