Cornelius v. Giberson

1. The statute of limitation will run against the boards of proprietors in New Jersey, and twenty years’ adverse possession of lands will bar their right of entry or recovery. 2. A person in possession of lands lying in the “ angle,” or disputed territory between East and West Jersey, under claim of title derived from the council of proprietors of West Jersey (the, true boundary not being ascertained), is not to be regarded as a naked trespasser without color of title, though the land eventually prove to be in East Jersey. 3. The adverse possession necessary to bar a right of entry must be actual possession continued for twenty years. If there be an intermission of occupancy, or of the acts which constitute the actual possession for an intervening period during that time, although during such period the party may have continued to claim title, pay taxes, and may have surveyed the tract, the statute will not bar. Paying taxes or surveying out land do not constitute possession. 4. Repeated acts of trespass upon unoccupied land will not constitute possession, or oust the true owner, whose title by law draws possession to him: for that purpose possession must be notorious, continued, and exclusive.

This cause was tried, before Justice Potts, in the Ocean County Circuit Court, in which the action was brought, and was removed into this court by writ of error. The action was trespass quare clausum fregit upon lands in Ocean county, and the plea was not guilty. The plaintiffs in error, who were also plaintiffs below, deduced their title from the East Jersey proprietors, and the defendant deduced his from the proprietors of West Jersey, and one of the questions in the cause was, whether the lands constituting the locus in quo were on the east or west side of the partition line between East Jersey and West Jersey, or where is the true partition line, the plaintiffs contending that the north termination of the line of partition between East Jersey and West Jersey is where the most northerly branch of the Delaware river, being the branch which retains the name of the Delaware, is intersected by the parallel of 41° 40' north latitude, and the defendant contending that it is at the point fixed by the convention between New York and New Jersey, in 1772, as the northern point of New Jersey, at the mouth of the Machackamac river, where it enters the Delaware. Upon this point the charge of the court was in favor of the position taken by the plaintiffs, and did not, therefore, come in review in this court on the writ of error. The plaintiffs deduced their title from the proprietors of East New Jersey, as follows : 1. A warrant from the East Jersey proprietors to New-ell, Debow, and Brinley, for 10,000 acres, dated May 20, 1835. 2. A survey and return to Newell, Debow, and Brinley, dated August 27, 18-35, for 1343.65 acres, and a second survey and return, dated July 15, 1840, to Debow and Brinley (Newell having died) for 1067.82 acres. 3. A deed from Debow and Brinley to George Cornelius, dated July 2, 1849, for 1392.04 acres, part of the two surveys above mentioned. 4. A deed from George Cornelius to his coplaintiff, Christian D. Empson, for one undivided half of the tract conveyed to Cornelius by the last deed, dated July 2, 1849, and acknowledged September 21, 1849. The defendant deduced his title from the proprietors of West Jersey, as follows: 1. A return of a survey to William Griffith, dated February 10, 1809. 2. A second return of a survey to William Griffith, dated October 13, 1809. 3. A deed from William Griffith to Benjamin B. Cooper, dated December 24, 1811. By divers mesne conveyances which did not come in question, the title of Cooper came to the defendant, Giberson, by a deed dated July 29, 1848. The surveys and conveyances under which the plaintiff claimed, and also the surveys and conveyances under which the defendant claimed, included the locus in quo. On the 4th of May, 1829, Samuel J. Read and Samuel G. Wright, who held the title claimed under the West Jersey proprietors, made partition of the whole tract between them, and in that year Samuel J. Read commenced cutting wood off the south part of the tract, and continued this cutting through 1830, 1831, and 1832. This wood was cut from about 500 acres of the south part of this tract, and the woodcutters erected cabins on the tract where they cut, and occupied them while engaged in cutting. This part of the tract was some distance from the locus in quo. Cornelius, one of the plaintiffs, had cut oh ninety acres of the tract; and upon a claim being made by Samuel J. Eead, it was submitted to arbitrators, who awarded $615 damages to Eead, which were paid by Cornelius. This was in 1836. Eead surveyed around the tract once or twice after the division between him and Wright, and paid taxes for the tract. In 1831, after the death of Eead, his administrators having obtained an order of the Orphans Court, to sell the whole real estate of Read, caused this whole tract to be surveyed, and sold the corded wood on the ninety acres cut off by Cornelius. In 1846, part of . the tract was sold in parcels, and the locus in quo was then sold to the defendant, Giberson, who entered and held the possession. This suit was commenced June 4, 1850. Upon submitting the cause to the jury, the court charged as follows: This is an action of trespass, brought by George Cornelius and Christian D. Empson against James Giberson, for the recovery of damages for the alleged cutting, coaling, and carrying away wood and timber on and from the lands of the plaintiffs by the defendant. The defendant pleads that he is not guilty of the trespass laid to his charge. . Under this issue', the plaintiffs are bound to prove— 1. That at the time of the alleged trespass they were in possession of the property, and that rightfully, as against the defendant. 2. That the defendant committed the trespass. To establish the possession, the plaintiffs produce and rely upon a documentary title, derived originally from the East Jersey proprietors. ' This title consists— 1. Of a warrant to Samuel C. Newell, Debow, and Brinley to survey 10,000 acres, and two surveys and returns, the first to Newell, Debow, and Brinley, of 1343.65 acres, dated 27th August, 1835; the second to Debow and Brinley, survivors .(Newell having died), 1067.82 acres, dated July 15, 1840. 2. A deed from Debow and Brinley for 1392.04 acres, part of the two above mentioned tracts, to George Cornelius, dated July 2, 1849. 3. A deed from Cornelius to Empson of one undivided half part of the same, dated July 2, 1849, acknowledged September 27, 1849. These conveyances vest in the plaintiffs whatever right and title the East Jersey proprietors had in the premises in question. It is in evidence that the premises described in these conveyances cover the land upon which it is alleged the cutting, &c., complained of as a trespass was done. Title carries with it, always, a constructive possession of land, which is sufficient to manintain trespass, even though no actual possession is shown; and therefore this documentary title is all that it was necessary for the plaintiffs to show, in the first instance, to maintain their action. Their title, you. perceive, commences July 2,1849, the date of the Cornelius * deed to Empson; if you believe it was actually executed and delivered at that time. It was not acknowledged until September 27, 1849, and was then in the grantor’s possession. Then, as to the alleged trespass, your inquiry is limited to the period between the 2d of July, or the 27th, September, 1849, whenever it was that the plaintiff’s title vested, and the 4th of June, 1850, the commencement of this suit. There is evidence that the timber has been cut almost entirely off of about 365 acres of this land; 172 acres in what is called the south tract, and 193 acres in what is named as the north tract, as exhibited in the map produced before you. A good deal of evidence has been laid before you as to the time of the cutting and coaling of this timber, the place where it was cut, the quantity and the value. I leave this evidence with you, with the simple instruction, that the plaintiffs, if entitled to recover, can only recover damages for the wood and timber cut by the defendant, or by persons in his employ, on the premises actually belonging to Cornelius and Empson, the plaintiffs, between the time when their joint title actually commenced, by the delivery of the deed from Cornelius to Empson, and the 4th of June, 1859, when this suit commencel. Whether this title commenced at the date of the deed, 2d July, 1849, or at the date of the acknowledgment, 27th September, 1849, is a question of fact for you to determined Delivery of the deed is necessary to complete a title by deed. In the absence of evidence to the contrary, the law will presume a deed to have been delivered on the day it bears date; but this presumption may be rebutted by circumstances or facts. A deed, however, is good if delivered without being formally acknowledged before an acknowledging officer. This is all I deem it necessary to say on the question of the amount of damages, and I proceed to the more serious questions in the cause. The defendant puts his defence upon two grounds. 1. Title. 2. Adverse possession for twenty years and upwards. He exhibits a title from the West Jersey proprietors to William Griffith, February 10, 1809. Griffith sold to Benjamin B. Cooper, one half the tract; which came by several conveyances to Samuel J. Read, in 1826. Griffith sold the other half to Sykes, who conveyed to Samuel G. Wright, in’ 1824. Read and Wright made a division of the premises in 1829. Read’s share embraces the premises in dispute. He died in 1836. Giberson claims through the administrators of Read, by deed dated 29th August, 1846. It will be seen, therefore, that the plaintiffs exhibit a title from East J ersey proprie tors in 1835, the defendant from West Jersey proprietors in 1809. This presents-the'naked question, to which of these boards of proprietors this land originally belonged, or, is the land in East or West Jersey ? The question fairly meets us in the case, and we must dispose of it. For the hazard the court runs of falling into error in the haste of a trial at the circuit, it has the consolation of knowing that its errors are open to correction elsewhere. The first inquiry is, where is the time beginning point of the East and West Jersey division line on the Delaware river; is it where the latitude 41° 40' north intersects the river, or is it at the mouth of the Machackamac ? The plaintiffs insist that it. is the former, the defendant the latter. Whichever may be found to be the true beginning point, a straight direct line run from thence to the south station point, it is admitted on all hands, will give us the true line. The title to New England, New York, and New Jersey being originally in the king of England, he, by royal grant on the 12th March, 1664, conveyed these provinces to the Duke of York by a general description, which it is unnecessary for me here to repeat, as it has been read in your hearing. The Duke of York, in 1664, conveyed New Jersey to Berkely and Carteret, describing it as — all that tract, &c., adjacent to New England, bounded by the main sea, Hudson’s river, and the Delaware, extending northward as far as the northernmost branch of the said bay or river Delaware, which is in 41° 40' of latitude, and thence in a straight line to Hudson’s river, in latitude 41°. The commission and the instructions of Berkely and Carteret to Governor Carteret, of 10th February, 1664, re cite tlie same boundary in the same language as the deed last mentioned. The Dutch conquest having rendered these titles doubtful, the king, in 1674, made his second grant, which is in the same language as the first. And the proprietors having agreed to divide the province in tlie meantime — on the 29th July, 1674, the Duke of York conveyed East Jersey to Carteret, describing its bounds “as extending to Barnegat on the east, and then bounded on the west on a straight lino from the said creek called Barnegat to a certain creek in Delaware river next adjoining to and below a certain creek in Delaware river called Renkokas kill, and from thence up the said Delaware river to the northern-most branch thereof, which is in 41° 40' latitude, and in the north crosseth over thence in a straight line to Hudson’s river, in 41° of latitude.” The western boundary, having been abandoned by Carteret in the deed of partition soon afterwards made, is unimportant. But this conveyance fixes the New York and New Jersey division line, by the same description, substantially as is used in the original grant to Berkely and Carteret. The next deed necessary to notice is the quintipartite deed, or the deed of partition between the proprietors, by which East Jersey was released to Carteret, and West Jersey to Penn, Laurie, Lucas, and Bylling. This was in 1676, and, being the deliberate act of the proprietors themselves, is the important document in this controversy. It recites the northern boundary of the province thus: “ to the northward as far as the northernmost branch of the said bay or river of Delaware, which is in 4-1° 40' of latitude, and crosseth over thence in a straight line to Hudson’s river, in 41° of latitude.” It also recites that Fenwick had purchased one moiety, and conveyed it to Penn, Lucas, Laurie, and Bylling, and that the said parties had agreed to make partition, Carteret to have East Jersey, described as “all that easterly part, share, or portion of the said tract lying on the east side and eastward of a straight and direct line drawn through the said premises from north to south, and the others to have West Jersey, lying on the west side and westward of said line; and then proceeds: Now these presents witness, &c., that said Penn, &c., bargain, sell, and release to Carteret all those easterly parts, shares, and portions, &c., so granted and conveyed by the Duke of York to Berkely and Carteret as aforesaid, extending eastward and northward along the seacoast aud the said river called Hudson’s river from'the east side of a certain place or harbor lying on the southern part of the same tract of land, and commonly known as Little Eggharbor, to that part of the said river called Hudson’s river, which is in 41° latitude, being the furthermost part of the said tract of land, &c., which is bounded by said river, and crossing over from thence, in a straight line extending from that part of Hudson’s river aforesaid, to the northernmost branch or part of the before mentioned river, called Delaware, and to the most northerly point or boundary of the said tract, &e., so granted, &c., to Berkely and Carteret, now by the consent and agreement of the said parties to these presents called and agreed to he called the north partition point, and from thence, that is to say from the said north partition point, extending southward, by a straight and direct line drawn from the said north partition point southward through the said tract of land, unto the most southerly point of the east of Little Eggharbor aforesaid, which said most southerly point of the east side of little Eggharbor is now, by the consent and agreement of the said parties to these presents, called and agreed to be from henceforth called the south partition point; and which said straight and direct line drawn from the said north partition point through the said tract of land unto the said south partition point is now, by the consent and agreement of the said parties to these presents, called and agreed to he called the line of partition, which is the line herein before mentioned to be intended, by the consent and agreement of the said parties, for the dividing and making a partition or separation of the said easterly part, share, and portion from the westerly part, share, and portion of the said tract, &c., to have and to hold, &e. (This disposes of East Jersey.) And said presents further witness, that in further pursuance and performance of the said herein before recited agreement, and for the further perfecting the said partition, so agreed to be as aforesaid, &c., the said Carteret bargains and sells, &c., to Penn, &c., all that westerly part, share, and portion, &c., which said part, &c., is and are extending southward and westward and northward along the seacoast and the before mentioned Delaware, &c., from the said south partition point, before mentioned to be on the east side of Little Eggharbor, unto the said north partition point, herein before mentioned to be in the before mentioned northernmost branch or part of Delaware river aforesaid, and from thence, that is to say from the north station point before mentioned, by the straight line, &c., to south partition point. Now it seems to me impossible to mistake the beginning and ending of the straight partition line mentioned in this deed, the former at 41° 40' north -latitude on the Delaware, the latter at Little Eggharbor; and that this line, wherever it was, was then, in the year 1676, fixed as the established line between the two divisions by the solemn and deliberate agreement of the parties. The recital in the deed, to which the subsequent descriptions of the premises refer, describes the point as the northernmost branch of the said bay or river Delaware. But where on that branch ? Not necessarily at its junction with any other branch. The words are not so ; and certainly not there, if a particular place is mentioned which is not at the junction. A branch of a river is sometimes a stream hundreds of miles in length, and it is the branch which is in. 41° 40' of latitude. Suppose it had been the Delaware, instead of a “branch of the Delaware,” (both terms signify a river or steam) — the Delaware river, which is in 41° 40' — can any one' say that would have meant the mouth of the Delaware, though three hundred miles from the point of latitude described ? I think not. ■ The north station point claimed by the plaintiffs answers the description, it is in the northernmost branch of Delaware. It is in latitude 41° 40', while I cannot find a word in the deed which indicates the mouth of the Machackamac to be the point meant. That is not the northernmost branch of the Delaware, for there are brandies of that river further north. It is not in latitude 41° 40'. I cannot see that the Machackamac answers the description better than the Musconeteong, the Pequest, or the Paulinskill. In early times the junction of the Lehigh and the Delaware were known as the forks of the Delaware, and the main river was the northernmost branch of the Delaware. If in our search for the true point in the language of this deed, we strike out the words, “ which is in the latitude 41° 40',” I am entirely at a loss to know where the point intended is to be found. If we leave them there, we must go to the point claimed by the plaintiffs. I cannot, therefore, but think that the true construction of the quintipartite deed calls for the north point of beginning claimed by the plaintiffs. But lot us see if there is anything in the subsequent bistory of these titles to show a different intention. I do not attach much importance to the fact, that the deed of confirmation from the Duke of York to the twenty-four proprietors, in 1682, and the duke’s second grant to the West Jersey proprietors, in 1680, contains the same description, by recital, of the north point of boundary, nor to the various subsequent acts and documents to which we have been referred, mentioning the same boundaries in t: e same language. They only show that no ambiguity or want of certainty in the descriptions had been supposed to exist in the language which was used in the quintipartite deed. Nor does it seem to me at all important to this question that the colonial legislature, in the erection of counties, seemed to have no regard to the descriptions of their bounds with respect to the true division line, even long after the date of the deed. These were political divisions, not affecting the rights of the proprietors. There was no actual line run, and lines were manifestly spoken of as in East or West Jersey, with little regard to where that line might be found eventually to run when it came to be surveyed. The tripartite deed, in 1719, made between commissioners of New York and East and West Jersey, however, is a document which bears, I think, upon the question, as to how the language of the quintipartite deed was understood in both colonies at that day. The commission was appointed, in pursuance of acts of New Jersey and New York, to .search for and ascertain which was the most northernmost branch of Delaware river, and to findout that place of the said northernmost branch that lies in the latitude of 41° 40', which, says the preamble to the deed, “is the north partition point of New York and New Jersey.” They discharged their duties, and found that the place designated was on the Fishkill (now Delaware), and at the Indian town of Cashughtouch, being in 41° 40', and which I understand to be the very point claimed by the plaintiffs here; and they executed a deed certifying that to be the true beginning point required by that description, inserting also in the deed, by way of parenthesis, that it is likewise the north partition point between the eastern and western divisions of New Jersey. As to the validity of this report, certificate, or deed tripartite, as it is called, or its binding obligation, I say nothing. It is now an immaterial question, for this deed did not finally settle the line between New York and New Jersey. The matter was still agitated from time to time, and finally a dividing line was established by the commissioners of 1772, which I shall have occasion to advert to, because it seems to have had considerable, agency at least in perpetuating, if it did not in fact originate, the long dispute which has now existed between the two boards of proprietors under whom these parties claim. The quintipartite agreement'was executed in 1616. The above period mentioned New York and New Jersey line was finally settled in 1772, ninety-six years after. ( From the date of the quintipartite deed, in 1676, eleven years elapsed before any serious attempt was made to run the line called for; then, in 1681, Keith, surveyor general of East Jersey, by order of the eastern hoard, ran a line about sixty miles from Eggharbor to Dobie’s plantation on the Earitan, and then abandoned it, finding his course too far south.' Then fifty-six years more elapsed until 1143, in which year John Lawrence ran a line, now claimed by the East Jersey hoard to be the true line, from 41° 40' on the Delaware to the south station point; and in 1112 the partition line was settled between New York and New Jersey, fixing the mouth of the Machackamac as the beginning point of the line between the two colonies. Although it seems quite clear that the West Jersey proprietors never agreed formally to this line of Lawrence as the true lino, yet there is a good deal of evidence to show' that from the time it was run in 1143, to the date of the partition with New York, in 1112, that hoard at least partially acquiesced in it; and I think, prima, facie, it may be taken as the true line, as far as he actually run it, or fixed monuments showing where it is. From 1144, down indeed to 1115, surveys and warrants for relocations are in evidence, in which the West Jersey board acted upon the principle that Lawrence’s was the true line of partition. I need not recur to them; they have been before you, and largely commented on by counsel. And from all the evidence in the cause, as to the action of the West Jersey Board, I think it may be fairly inferred that previous to the New York partition, in 1112, the western proprietors did not seriously question, if at all, that the north beginning line of the quintipartite deed was on the Delaware where it’ is intersected by the latitude of 41° 40'. Then, did the partition between New York and New Jersey, in 1772, change the boundary between East and West Jersey ? or, in other words, did it change the north 'beginning point from41° 40' to the mouth of the Machackamac, on the Delaware ? 1. The argument is, that the commission which had this matter in charge found the true beginning point of the New York and New Jersey north line there, and that that north beginning point is the true point intended by the quintipartite deed ; for it is not pretended that the commissioners who fixed this boundary line had any power to fix the beginning point of the East and West Jersey partition line, as such, or that they claimed any such power, or that they actually meant to do anything of the kind. But it is very clear that the line fixed between New York and Now Jersey by this commission was a compromise, if not an arbitrary line. Their authority was not merely to find the true line intended by the deed of grant, but to ascertain, settle, and determine the boundary, and they reported, not that they had ascertained what the line called for by the title was, but that they “ did determine” that the boundary or partition line “ should be ” a straight line from the mouth of the Machackamae, on the Delaware, in the latitude 41° 21' 37", to the latitude of 41°' on the Hudson. It was, I think, an arbitrary line, fixed -with but little reference to the boundary described in the grants, and was not acceded to’ until an ineffectual effort to resist it had been made by East Jersey. With the merits of this question we have nothing to do here. The two colonies had passed acts giving the authority for this commission; they finally adopted the result, and the line is settled between New York and New Jersey. But nothing that the two legislatures did, or the commissioners, or the king in council, struck out one word or letter of the deed quintipartite, or changed the property rights, as they stood between the eastern and western proprietors. Where there line was before, it was 'after tills settlement of tbe Eew York line. There is, gentlemen, a great deal of evidence of various kinds going to show the views entertained in relation to this north partition point between East and West Jersey, by individual proprietors, by the respective boards, by minutes and resolutions and acts. But in the questions which constantly arise in respect to the boundary of lands, there is one safe, sound, salutary rule which should always govern us, and that is, to abide by the language of the deed, where the meaning sufficiently explains itself. Evidence aliunde, outside of the instrument, may be resorted to, and must be resorted to when the meaning cannot bo found in the instrument itself, but only then. I am of opinion that the language of the quintipartite deed sufficiently explains itself; that its meaning is apparent on its face, and that it fixes the north partition point of the line between East and West Jersey, on the stream now known as the river Delaware, where it is intersected by the latitude of 11° JO'. If from the evidence before you, you shall be of opinion, therefore, that a straight and direct'line from that point to the south partition point will run to the westward of the premises in question, then my instructions to yon are, that the documentary title of the defendant fails, and the plaintiffs are entitled to recover, unless the defendant has made good his second ground of defence — and which we are in the next place to examine. 2. For, in the second place, the defendant relies upon a possession of upwards of twenty years held adversely to the plaintiffs’ title. The defendant holds under the West Jersey proprietors, who conveyed this land to William Griffith, in 1809; and if you believe that this title was acquired in good faith, then it had its origin in a claim of right, and adverse to the plaintiffs and those from whom their title came, to wit, the East Jersey proprietors. Two parties cannot have possession adverse to each other-at one and the same time, and if the defendant and his grantees show an adverse possession for twenty years continuously, it operates as an ouster of the eastern proprietors and their grantors. I shall not trouble you by going back further than the Read claim. It is in evidence, by' the testimony of Mr. Joseph Read, that Samuel J. Read was in the actual occupation of part of the premises, in the fall of 1829, soon after the partition between him and Samuel G-. Wright; that he had cabins erected on the premises, and that he cut and coaled the timber on a large portion of the tract; and that he continued in such occupancy, frequently exercising acts of ownership over it up to the time of his decease, in 1836. There is evidence that Mr. Haines ran out the property repeatedly for Mr. Read during his life, and for his representatives after his decease. It is in evidence that Mr. Read’s representatives procured an order to sell the land, or a part of it, in 1837; that they sold the portions of it on which Giberson is alleged to have committed this trespass to Giberson and Stephens and Grover, in 1816, at public sale, and Stephens and Grover sold to Giberson, in 1818 ; that during the interval between 1836, the death of Read, and 1816, the date of the sale, the administrators exercised vigilance in protecting the property against trespassers, and that Mr. Cornelius and others were stopped from cutting on the premises. It appears that soon after Giberson bought, he entered into possession of the property, and commenced cutting, and that he was so in possession and cutting on the premises, in 1819, when the plaintiffs purchased of Messrs. Debow and Brinley. I advert thus briefly to the evidence. It is all before you, and yon are the judges of the weight due to it; you will fake it altogether, and judge of it for yourselves. My instructions to you are, that if, upon the w'hole evidence in reference to the question of possession, you believe— That the adverse possession on the part of the defendant and those under whom he claims is sufficiently shown to have continued uninterruptedly for a period of twenty years prior to the commencement of this suit, the defendant will be entitled to your verdict. In reference to what constitutes a legal adverse possession or occupancy for the purpose of a bar to an action of trespass, I have to say to you— 1. The possession must have been originally taken under a claim hostile to the title of the plaintiffs and those under whom they hold, and must have been so continuously held by the defendant and those under whom he claims far at least twenty years previous to the commencement of the suit. It is not necessary that the claim should originate in a rightful title, but it must be a possession under claim or color of title, and exclusive of any other right. 2. Adverse possession is not to be made out by inference, but must be established by clear and positive proof, because every presumption is in favor of possession in subordination to the title of the real owner. 3. A claim or color of title sufficient to destroy all presumption that the defendant was in possession under the plaintiffs or under his grantors, or by their permission, is an adverse possession. 4. To constitute an adverse possession, there need not be a fence, building, or other improvements made by the claimant upon the land. It is sufficient if he shows the exercise of visible and notorious acts of ownership over it after an entry under claim and color of title. 5. Where acts of ownership have been done upon land, which from their nature indicate a notorious claim of property in it, and are continued for twenty years with the knowledge of an adverse claimant, without interruption or an adverse entry by him, it is evidence of an onster of a former owner, and an actual adverse possession against him, if. the jury think the property was not susceptible of a more strict or definite possession. 6. Neither actual occupation, cultivation, or residence are necessary to constitute actual possession; where the property is not susceptible of permanent useful improvement, public acts of ownership, such as one would e xercise over his own property, and would not exercise over another’s, is all that is required. We cannot expect the same evidence of occupancy of wondland as of farm land. 7. An entry into possession of a tract of land under a deed containing specific metes and bounds gives a constructive possession of the whole tract, if not in any adverse possession, although there be no fence or enclosure round the ambit of the tract, and an actual residence only on a part of it. The entry is coextensive with the grant. A recorded deed and entry is notice of the tract of which possession is taken. 8. A good title originally is not necessary, nor any title. Color of title is received in evidence to show the possession to be adverse. If applying these principles to the facts of this case, as you have them in evidence, you shall be of opinion that the defendant and those under whom he claims have had an adverse possession of the premises upon which the trespass is alleged to have been committed, as against the plaintiffs and those under whom they claim, for twenty years or more prior to the 4th day of June last, then your verdict should be for the defendant; or if you believe the premises in question to be west of the true partition line, that is in West Jersey, the defendant is entitled to your verdict independent of his proof of adverse possession, for i’ien he has the rightful title. But if you believe the promises in question are in East Jersey, and the defendant has not had such adverse possession for twenty years, then your verdict will be for the plaintiffs, with, such amount of damages as you may find, which is usually the value of the timber proved to have been cut. Whereupon the plaintiffs excepted to the following portions of said charge, viz.: 1. “ If upon the whole evidence, in reference to the queition of possession, you believe that the adverse possession on the part of the defendant and those under whom he claims is sufficiently shown to have continued uninterruptedly for a period of twenty years prior to the commencement of this suit, the defendant will be entitled to your verdict.” 2. “ A claim or color of title sufficient to destroy all presumption that the defendant was in possession under the plaintiffs, or under their grantors, or by their permission, is an adverse possession.” 3. Also, collectively and separately, to each and all of the seven instructions given to the jury in reference to what constitutes a legal adverse possession. 4. “If applying these principles to the facts of the case, as you have them in evidence, you shall be of opinion that the defendant and those under whom he claims have had an adverse possession of the premises upon which the trespass is alleged to have been committed, as against the plaintiffs and those under whom they claim, for twenty years or more prior to the 4th day of June last, then your verdict should be for the defendant.” 5. “ Or if you believe the premises in question to be west of the true partition line, that is in West Jersey, the defendant is entitled to your verdict independent of his proof of adverse possession, for then he has the rightful title.” The plaintiffs then called upon the court to charge — ■ 1. “ That it appearing, by the documents, proofs, and admissions of the parties, that the lands in controversy, lay in the angle formed by two lines, one running from the said south station point to the Delaware, at 40° 41', and the other more eastwardly to the Delaware, at the mouth of the Machackamae, in latitude 41° 20', and are held by the plaintiffs under East Jersey surveys, that the plaintiffs have under their East Jersey surveys a good and perfect title to said lands, and that the defendant can derive no title to said lands through their West Jersey or Griffith survey,” which the court declined, except so far as is already contained in said charge. 2. “ That the facts and circumstances proved on the part of the defendant cannot establish for him any right by possession to said lands,” which the court declined to do. 3. “ That the acknowledgment of General Read’s right to the Griffith, survey by one of the plaintiffs, made twelve or thirteen years before the plaintiffs’ title accrued to the land now in controversy, or any letters or admissions made by Samuel G. Wright, cannot affect the plaintiffs’ right to the land or their right of recovery in the. present suit,” which the court declined to do. 4. “ That the plaintiffs are therefore entitled to recover the value of the damages, with interest, by way of damages done by the defendant on the lands in controversy between 2d July, 1849, and the. 10th June, 1850,” which the court declined'to do: to all which the plaintiffs excepted, and prayed bills of exceptions, which were signed and sealed accordingly.