Sorber v. Willing

The opinion of the court was delivered by Gibson, C. J.

In Wright v. Guier, 9 Watts 172 , we held, that the use of an unseated tract of land as a wood lot, is not an adverse possession to bar an action of trover for wood cut from it; and it is *142 consequently not an adverse possession to give effect to the statute of limitations. What moré was there here during a great part of the period of its course? The first occupant entered in 1812, and built a saw-mill, which was kept in use till 1817, when, the dam having been swept away, it went to decay, and finally to ruin; but without having had a dwelling on the land, he sold his claim, such as it was, to bis son Philip, who-is one of the defendants, and who, in 1830, built a saw-mill on another site, which has been in operation ever since. In the same year Jacob, also a son and defendant, entered, made a settlement, and cleared a few acres. The ejectment was brought in 1838. Of the twenty-six years that elapsed betwixt the first entry and the action, the defendants were out of possession half the period; and the longest period of actual adverse possession consisted but of eight. Unless, therefore, they can connect their two periods of actual possession by an intermediate adverse link, their defence on the statute must fail. That link is attempted to be supplied by evidence, that they, or their father, had paid the taxes; but does payment of taxes alone constitute an actual adverse possession? In Johnson v. Irwin, 3 Serg. & Rawle 291 , and in Royer v. Benlow, 10 Serg. & Rawle 306 , it was ruled, that there must be inclosure or cultivation; and that the one or the other of these, or both, must have been continued without intermission. Now to leave the fragments of a ruined sawmill on the land, is no more indicative of a retained possession, than to leave the fragments of a ruined fence on it, or a waste field grown up with sprouts or saplings. Then what- is payment of taxes? In Royer v. Benlow, it was held to be equivalent to colour of title, and ground for a persumption of ouster from the residue by an occupant of a part; and the same piinciple was held in M’Call v. Neely, 3 Watts 73 . From Read v. Goodyear, 17 Serg. & Rawle 350 , a case indistinctly stated as regards the present point, it might be inferred that payment of taxes without entry and occupancy, is equivalent to an ouster; but there seems to have been an entry in that case, and besides the point decided had not regard to the statute of limitations, but to abandonment as a circumstance to strengthen the title of a vendee at treasurer’s sale. Payment of taxes alone, therefore, though it may extend the limits of an adverse possession, does not constitute it. Like any other voluntary payment of another’s debt, it gives no right or advantage against the owner. There must be, along with it, an actual occupancy of at least a part of the land; and for half the period, there was no such occupancy in the case before us. If the defendants’ claim to the title had not been abandoned, at least their occupancy had been intermitted. Unlike settlers, they had not entered in good faith, and with an expectation of holding by improvement: they were casual trespassers and had no possession to be protected. They were not, during the whole time, even squatters who held parcel of the land by actual possession. The jury, therefore, were properly directed that pay *143 ment of taxes during the interval of actual occupancy, or even from the first entry, was not evidence of ouster.

Judgment affirmed.