Gates vs. Butler, 3 Hum. 447

Reese, J. delivered the opinion of the court. The plaintiff claimed under a Kentucky grant since the treaty of boundary between that State and Tennessee, the land lying south of the parallel of latitude 30°, 30', and north of Walker’s line. The defendant claims under a grant from the State of North Carolina dated, 1795. At the trial, plaintiff relied upon two grounds for a recovery. First. — That die North Carolina title had been abandoned by those claiming under it. Of this there was no evidence, but abundant evidence to the contrary. 2d. Upon actual possession of a part of the land for more than seven years.

As to this point, the proof made it clear, that it was not the purpose and intention of the plaintiff to take or keep possession of any of the land in controversy; that the fence, supposed to include some of it, was intended by the plaintiff, or by those under whom he claimed, tobe placed on the boundary line, and was believed by both parties to be upon said line. And indeed the proof made it most probable, that it in fact was upon the partition line. * .

Under these circumstances the court charged, that the accidental and unintended enclosure of a small part of the land for seven years, would not vest a valid title in the owner of the inferior grant, so as to enable him to recover against those claiming under the superior grant. In this we think there was no error; and we affirm the judgment.