
    Catharine McBeth vs. John Donnelly.
    The payment of taxes for land which one claims by possession, is not admissible evidence in his behalf, to show that his possession was adverse.
    Cutting wood and stripping bark are not such acts as will amount to actual and adverse possession.
    An actual possession of part of a tract of land, accompanied by color of title, cannot be extended constructively over the whole, where the rightful owner is also in possession ; but in such cases, he who claims a possessory right will be restricted to that part of which he has had an adverse possession, actual and defined.
    An abandonment of the land and leaving it in the undisturbed possession of the rightful owner for sixteen years, constitute a strong presumption that the original possession was not adverse; and in this respect there is an analogy in a mere possessory right to a right by prescription.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action of trespass to try titles. The plaintiff made out a clear and unquestionable paper title to a tract of upwards of sixteen hundred acres, of which she and her deceased husband had been in actual possession of a part since April, 1806.
    Amherst Donnelly, the father of the defendant, was the admitted owner of a part of the original survey, under which the plaintiff deduced her title, but which was platted out on the plat annexed to one of the conveyances under which she claimed: and to it the plaintiff had never set up any claim.
    The defendant contended that he was entitled under a plat - made for his father, in 1806, to hold five or six hundred 'acres (which-the said Amherst called the brick-ldlh tract) of -the land covered by the plaintiff’s title.
    He proved that his father, outside of the part of the original survey, which belonged to him, but within the limits of his plat of 1806, and within the plaintiff’s tract, had from 1811 lived on one spot, four of five years — and at another, one year — but the precise location of these spots was not pointed out, or the extent defined. During this time, within tbe plat, be stripped bark and cut wood. The defendant himself at one time in 1812, lived on a part of the tract, but for how long, did not appear. There was no precise location of his possession, or evidence of its extent. The defendant’s father, Amherst Donnelly, removed from the land in 1819, soon after James McBeth, the husband of the plaintiff, had burned the last pole hut which he (Amherst Donnelly, had erected within the lines of the plaintiff’s survey; from that time, neither he nor the defendant, nor any one claiming under him, had been in possession of the land in dispute. At some time during the life of Amherst Donnelly, who at the time of the trial, was dead, he divided his plat of 1806 among his children; a part of it was assigned to the defendant.
    Shortly before the commencement of this action, the defendant committed a trespass on the land.
    During the progress of the case, the defendant offered the tax returns of Amherst Donnelly, to show that he had paid taxes for the land. The evidence was objected to, and the presiding Judge excluded it, on the ground that it was the declaration of the party in support of his own title, and could not be received.
    He also instructed the jury that the plaintiff’s title was made out, and unless divested by possession, must prevail. That possession must be adverse and actual, and to give it constructive effect, must be accompanied by color of title. That any thing which definéd the extent of claim would be color of title: that the defendant’s plat was in this respect sufficient — but the defendant’s constructive possession was met, overreached and defeated by the constructive possession of the plaintiff; whose title being paramount, entitled her therefore to recover all the land except that covered by the actual possession of more than five years, which the defendant and his father had before 1819. That this, however, was not defined, and could not therefore be found for the defendant. He also charged in connection with this, that the abandonment of the land by the defendant and his father, in 1819, and the continued possession of the plaintiff since, ought to defeat the defendants’s supposed possessory rights. That his abandonment of the land, and leaving it in the undisturbed possession of the rightful -owner for sixteen years, would constitute a strong presumption that bis possession was not adverse, and tbat in this respect there was an analogy in a mere possessory right to a right by prescription.
    His Honor also stated in the course of his remarks, that cutting wood and stripping bark, were not such acts as would be evidence of an actual and adverse possession.
    The jury found for the plaintiff, and the defendant appealed, on the following grounds:
    1st. Because his Honor, the presiding Judge, erred in rejecting the tax returns of Amherst Donnelly, the father of the defendant, and under whom he claimed title; these tax returns being good evidence of adverse possession.
    2d. Because the Judge erred in charging the jury that the cutting wood, stripping bark and changing his residence to different parts of the tract included in his plat and survey, were not sufficient to authorize the jury to conclude that the possession was actual and adverse of the entire tract.
    3d. Because the Court charged, that if Donnelly had acquired at itle by possession, prior to his leaving the tract,, that the constructive possession which the plaintiff had by occupying a distant part of the tract, was enough to defeat the title of Donnelly, and re-acquire his original claim.
    4th. Because the Judge erred in saying that the defendant must show the actual extent of his enclosures for five years, to acquire a title to any spot; whereas, it is submitted, that having proved an occupation from at least 1806 to 1823, of some part, under color of title, and such use as is common of the rest, and the tract being a known and designated tract, called Donnelly’s brick-kiln tract, the possession was enough, together with his color of title, to give an indefeasible right.
    5th. Because, it is submitted, the verdict was against the law and testimony of the case.
    
      Hunt, for appellant.
    Yeadon, contra.
   O’Neall, J.,

delivered the opinion of the court.

This Court perceives no reason to be dissatisfied with the result of the case below.

The motion is dismissed.  