Pearley Cook vs. Camden H. Babcock, 11 Cush. 206

Bigelow, J. Where a party claims by a disseisin, ripened into a good title by lapse of time as against the legal owner, he must show an actual, open, exclusive, and adverse possession of the land. All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, the acts of the wrongdoer are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof of an actual occupancy, clear, definite, positive, and notorious. 2 Greenl.

Ev. § 557; Stearns on Real Actions, 39 ; Jackson v. Schoonmaker, 2 Johns. 230 ; Kennebec Proprietors v. Springer, 4 Mass. 416; Blood v. Wood, 1 Met. 528; Coburn v. Hollis, 3 Met. 125; Boston and Worcester Railroad Corporation v. Sparhawk, 5 Met. 469; Slater v. Jepherson, 6 Cush. 129. It is not sufficient, therefore, in order to maintain a title by disseisin, to show, that the legal owner had actual knowledge of and assented to acts of ownership upon his lands.

Such proof may be equivalent to evidence that such acts were open and notorious, because it gives the owner notice that his seisin is interrupted and that his title may be endangered. But these acts must not be merely occasional, partial or temporary in their nature. A party may have knowledge of frequent and long continued trespasses on his property without being barred of his right. The possession must be actual, exclusive, and adverse, as well as notorious and open, or actually known to the real owner.

On the one hand, if the acts of ownership and possession by a disseisin are not of a nature to work a disseisin, they cannot be made more effectual for this purpose by proof that they were known and not objected to by the legal owner, and on the other, hand, evidence of actual exclusive and adverse possession will not avail as proof of title, unless it is shown to have been open and notorious or actually brought hom.e to the knowledge of the person holding the legal title.

On this principle, it has been held that where parties have established by agreement, conventional lines as the true boundaries of their respective estates, no disseisin is worked by such agreement, unless it is followed by an exclusive adverse possession according to the lines thus established. 5 Met. 469. Strictly speaking, the consent of the legal owner to

an act of disseisin is a contradiction in terms. Disseisin, like trespass, is a tortious act adverse in its nature and in derogatian of the right of the trac owner. To say that a party consents to such

an act is to deprive it of its wrongful character, and make it an acknowledgment instead of a denial of title. Applying these principles to the case at bar, it appears to U3 that the instructions of the judge, who presided at the trial, were liable to be misapprehended, because they authorized the jury to find a verdict for the plaintiff on the ground of assent by the defendant and his grantor to acts of possession and ownership on the part of the plaintiff, although the acts proved were not sufficient to work a disseisin.

It would have been more accurate to have explained to the jury the legal definition of the term disseisin and the elements necessary to be proved in order to establish a title thereby, and left it for them to determine upon the evidence whether the entry and possession of the plaintiff were actual, exclusive and adverse as well as known to the defendant. Upon the instructions as they stand, we feel constrained to set aside the verdict and order a new trial.

It is very questionable whether upon the evidence, taking into view the acts of the plaintiff and the uncultivated nature of the premises in question, there was any sufficient proof to warrant a jury in finding a title by disseisin in the plaintiff, but as this question has not been argued, we forbear to express a decided opinion upon it. See Slater v. Jepherson, 6 Cush. 129. Exceptions sustained.