§ 591. Visible and notorious possession.-In order to secure title by adverse possession, the owner of property must have had actual notice of the possession, or the possession of the disseisor must have been visible and notorious.52 What is visible and notorious possession depends on the facts of each case. 53 53 Fencing the lands, cultivation, and erection of buildings,56 have been held to be such acts. The possession must not be clandestine."

54

53

§ 592. Possession must be hostile.-A possession subordinate to the owner can not ripen into title.58 But such possession may thereafter become adverse and ripen into a title.** "Hostile," in this sense does not imply ill will toward the owner, but means an occupant who holds as an owner and against all other claims.60 In order to be hostile, the party must claim the land as a matter of right to the exclusion of others.61 What is adverse or hostile possession is a question of fact. Suing the owner for trespass by one in possession is evidence of adverse possession. Declarations by the adverse holder are evidence of such possession. Such declarations were that possessor was not holding as a tenant of the alleged owner.65 Party entering by consent of owner may thereafter disclaim holding by such consent and such disclaimer must be brought

63

52 Van Matre v. Swank, 147 Wis. 93, 131 N. W. 982, 132 N. W. 904. 53 Lake Shore & M. S. Ry. Co. v. Johnson, 157 Mich. 115, 121 N. W. 267.

54 Cutter v. Cambridge, 6 Allen (Mass.) 20.

55 Wolf v. Ament's Executors. 1 Grant, Cas. (Pa.) 150.

56 Foulke v. Bond, 41 N. J. L. 527.

64

57 Edmondson v. Anniston City Land Co., 128 Ala. 589, 29 So. 596. 58Toney v. Knapp, 142 Mich. 652, 106 N. W. $52.

59Toney v. Knapp, 142 Mich, 652. 106 N. W. 552.

60Ballard v. Hansen, 33 Nebr. 861, 51 N. W. 295.

61 Kingston v. Guck, 155 Mich. 264, 118 N. W. 967.

62 Highstone v. Burdette, 54 Mich. 329, 20 N. W. 64.

63 Hollister v. Young, 42 Vt. 403 64 Lamoreux v. Huntley, 68 Wis. 24, 31 N. W. 331.

65 Lamoreux v. Huntley, 68 Wis. 24, 31 N. W. 331.

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66

to the attention of the owner. And it is said, in a Mississippi case that: "Among relatives and especially between those occupying parental and filial, or quasi-parental and filial, relations, these circumstances would not be deemed so convincing because they may be consistent with a mere permissive enjoyment of a usufructuary possession."

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69

§ 593. Occupying to boundary line-Agreements, etc.We have heretofore treated of the question of parol agreements with reference to boundary lines.68 Should adjoining owners agree upon a line between their respective lands and each occupy up to that line claiming title thereto for the statutory period, it will be deemed to be an adverse occupancy." As to whether the line agreed upon was the true line is immaterial. But if parties occupy merely for convenience the possession of adjoining owners will not generally be adverse."1 Occupying land to a certain line by mistake with no intention to claim more than to the true line, will not be adverse beyond the true line. But there are cases holding the other way.73 Where grantor remains in possession after delivery of deed the possession will not be deemed adverse generally." Same where one enters under contract of purchase." The possession of a guardian is subordinate to ward, and a widow for dower rights to the heir. To the same effect is the possession of an

76

66 Allen v. Allen, 58 Wis. 202, 16 N. W. 610.

67 Davis v. Bowmar, 55 Miss. 671. 68 Ante. ch. XXI.

69 Reed v. Farr, 35 N. Y. 113; Reiter v. McJunkin, 173 Pa. 82, 33 Atl. 1012.

70 Wells v. Bentley, 87 Ark. 625, 113 S. W. 639.

71 Bird v. Stark, 66 Mich. 654, 33 N. W. 754; Burrell v. Burrell, II Mass. 294.

72 Shanline v. Wiltsie, 70 Kans. 177, 78 Pac. 436, 3 Ann. Cas. 140.

73 Erck v. Church, 87 Tenn. 575, 11 S. W. 794, 4 L. R. A. 641.

74 Stearns v. Hendersass, 9 Cush. (Mass.) 497, 57 Am. Dec. 65. 7Davis v. Howard, 172 Ill. 340, 50 N. E. 258.

76 Brown v. McKay, 125 Cal. 291, 57 Pac. 1001; Dewitt v. Shea, 203 Ill. 393, 67 N. E. 761, 96 Am. St. 311.

agent or of a tenant," and as to mortgagee and mortgagor.78

$ 594. Possession must be exclusive.-It is the rule that possession to be adverse must be exclusive. That is, there can be no divided possession with the holder of the legal title." When two persons are in possession the seisin follows the owner.80 Possession must be exclusive of all persons.81 But it seems one may admit title in the United States or a state and still hold adversely as to all others.82 But occupation in common with the public generally cannot be exclusive.88

§ 595. Possession must be continuous.-Another condition of the possession in order to be adverse and ripen into title is that it must be continuous. The party can not get title by holding a part of the period and then surrendering to another the lands sought to be taken. To so give up the possession before the statutory period has run will wipe out all rights theretofore gained.84 Occasional acts of dominion extending over the statutory period is not continuous possession." When possession is stopped, the running of the statute is also stopped. The running of the statute will begin to run again upon the return to possession. Unless modified by statute, the entry of the owner into possession before the statutory period has run will interrupt the statute. And it is not neces

77 Peabody v. Leach, 18 Wis. 657; Dixon v. Finnegan, 182 Mo. III, 81 S. W. 449.

78 Jones v. Foster, 175 Ill. 459, 51 N. E. 862.

79 Boltz v. Colsch, 134 Iowa 480, 109 N. W. 1106.

80 Bellis v. Bellis, 122 Mass. 414. 81 Cass Farm Co. v. Detroit, 139

Mich. 318, 102 N. W. 848.

82 Lord v. Sawyer, 57 Cal. 65.
88 Hittinger v. Eames, 121 Mass.

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87

85

84 Bean v. Bean, 163 Mich. 379, 128 N. W. 413; Mead v. Illinois Cent. Co., 112 Iowa 291, 83 N. W. 979.

85 Elyton Land Co. v. Denny, 108 Ala. 553, 18 So. 561.

80 Illinois Steel Co. v. Budzisz, 115 Wis. 68, 90 N. W. 1019.

87 Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039.

sary to bring an action to interrupt the running of the statute. 88

89

§ 596. Tacking possessions.-By tacking is meant the transferring of the possession of one adverse claimant to another. But the possession of the privy must be continuous with his grantor. Hence, successive periods of possession may be tacked or added to each other, and the total time held forms the entire period required by the statute.' But there must be a privity between the parties." Tacking may exist between vendor and vendee;92 between ancestor and heir or devisee;93 also between landlord and tenant. But there must be no gap between the occupants."

88 Shearer v. Middleton, 88 Mich. 621, 50 N. W. 737.

89 Bird v. Whetstone, 71 Kans. 430, 80 Pac. 942.

90 McNeely v. Langan, 22 Ohio St. 32.

91 White v. McNabb, 140 Ky. 828, 131 S. W. 1021.

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90

94

§ 596a. Generally.-Broadly speaking, the term "highway" includes all routes open to the general public for passage, whether by land or water. The term as used in this chapter refers to highways on land and includes state, county and town roads, but does not generally include streets in a city or village. Many states have a dual system of highways, being usually termed state roads, county roads, and town roads. Provision is made by the statutes of the several states for the laying out and maintenance of such highways, and the student should consult the laws of the state in which the particular highway may be located Primarily, state roads are under the direct control of the state, though a state may yield the care of the particular road to the local authorities. Likewise, county roads are under the direct control of the county authorities. In the case of state roads, provision is made by law for laying out and the opening thereof. A commission or committee is usually appointed for such purpose. County roads are laid out by the county board of commissioners or by a committee intrusted