
    *John Porter vs. Lucy and John Kennedy.
    The possession contemplated by the Statute of Limitations must not only be notorious and definite at one period, but .it must, in some form, be continuous, during the statutory time : that is, it should be definitely used, for some purpose, for ten years.
    Although “possessio pedis” does not require actual occupancy, it implies enclosure, and use of the grounds enclosed.
    The enclosing and sowing down a small turnip patch on a tract of land, and occupying it but for one year, and occasionally cutting and hauling from it firewood and other timber, will not be sufficient to defeat another, or give a title to land, under the Statute of Limitations.
    Before Butler, J., at Union, Extra Term, 1841.
    This was an action of trespass to try titles, and is fully explained by the report of his Honor.
    The plaintiff claimed under John Norvell, and had a regular title from him. The defendants are the widow and child of Benjamin Kennedy, and entitled to his lands. In 1817 or 1818, Benjamin Kennedy and Norvell made an exchange of lands. Norvell was to have a part of a grant of land to Win. Kennedy, (the father of Benjamin,) lying near to his house, about eight and a half acres, which he had enclosed at the time of the exchange, and which he cultivated till it was worn out. Kennedy was to have, in lieu thereof, about forty acres, being almost a mile from Norvell’s house, and almost a half mile from Kennedy’s, and adjacent to the main tract of land on which Kennedy resided. Hichard Thomson, a surveyor, was called on by both parties, as he and two other witnesses said, to lay off to Kennedy his land. A line was run at the time, which the Kenne-dys have regarded as their boundary ever since, always claiming the land below it. Benjamin Kennedy, in his lifetime, took no actual possession of this forty acre piece, but occasionally cut firewood on it. About 1824, Benjamin Kennedy died. In 1826, the defendant, his widow, understanding that Norvell intended to claim the land notwithstanding the exchange, sent her negroes and fenced in and sowed down in turnips about one-quarter of an acre of the land, with the avowed design of asserting her title and acquiring actual possession thereon. No turnips or other crop was afterwards planted, but the enclosure remained, and part of the rails are there now, or were there when the land was resurveyed in *this case. Mrs. Kennedy has continued to cut and haul wood from the premises ever since the death of her husband, and has, during that time, regarded the land as her own, never having been interrupted in the enjoyment of it till this action was brought, and after she had commenced to make a permanent clearing on the place. Years after the turnip patch was enclosed, the tract of land on which Norvell lived was sold at sheriff’s sale. The sheriff’s deed does not exclude in terms, this land, now in contention, but. conveys ail Norvell’s land in hand, in a grant to Huger, which includes this. The part that Norvell got on the exchange, he held long enough to give him a title by the statute of limitations ; and the question of law was whether Mrs. Kennedy had such a possession as would give her a title to the part claimed by her : that is, whether she had taken, by enclosing the turnip-patch, such a possession as should be regarded a disseisen of Norvell, and whether it was continued long enough by the enclosure remaining on it, and by her continuing to cut and haul away firewood, as to bar the right of those claiming under Norvell.
    Norvell was sworn as a witness, and declared that he never had made an exchange with Benjamin Kennedy, in his lifetime, but said that Kennedy was to give him forty acres for that which was laid off, or pay him money, and that his taking the part adjoining his own house was no part of the bargain. In this statement, he was contradicted by his own admission, made at the time the line was run, as well as his repeated declarations afterwards ; but whether the line had been run by his consent, and for the purpose stated by Thomson, and other witnesses, was a question which I submitted to the jury, with perhaps a distinct intimation that I did not think much importance was to be attached to Norvell’s testimony, on the facts deposed to by him. I thought it was very evident from the time the line was run, that the Kennedys regarded it as a color of title indicating the extent of their claim and possession ; and the real question in the case is, was there such a possession as to give title to the line ? I instructed the jury that they might come to that conclusion, if they thought the possession in the first instance was so notorious as to give Porter notice of it at the time, and was continued under such circumstances as to give the plaintiff the same notice of a deliberate design to claim the land on the part of Mrs. Kennedy. She *took possession fourteen years ago, and has continued to use the land ever since, by cutting fire-wood on it.
    The jury found for the defendants. I cannot say that I am entirely satisfied with the law, though I am entirely so with the justice of the proceedings.
    The plaintiff appeals, on the grounds :
    1. Because the Court held that the possession of defendants, or rather the trespass of the defendants, was sufficient to give title against the plaintiff, and those under whom he claimed.
    2. Because the question whether the contract to exchange lands between John Norvell and Benjamin Kennedy, was ever fulfilled by Kennedy, was not submitted to the jury.
    3. Because the verdict was contrary to law and evidence.
    
      Herndon, for the motion.
    The running of the land by a surveyor is not a title. The party must recover by adverse possession.
    A party clearing a small turnip patch in a remote part of the land, and using it only for one year, and then abandoning it, is not possession.
    The running of land by a surveyor, and the cutting of timber in the way in which these parties did it, will not confer a title by the statute of limitations.
    What kind of possession is necessary to give title by statute of limitation ?
    Cited 2 N. & McC. 343 and 544; 2 Johns. Rep. 230; 10 Johns, do. 477; 4 Mass. T. Rep. 418-19; 2 John. Rep. again, 230.
    Kennedy’s land was contiguous to the forty acres taken in exchange from Norvell, and as Norvell was in actual possession of the eight and a half acres, the law would conclude that Kennedy was equally in actual possession of the forty acres.
    
      Dawkins, contra.
    Would Norvell have been barred by the statute of limitations ? If so, then the verdict will be sustained.
    * There was a distinct purpose in the defendant to assert her rights to the land, and her occupying, and the notoriety of her possession, was of that character which would place the *party on liis guard, and show him that there was a claim adverse to his.
    If defendant’s possession was good against Norvell, would it not be good against those claiming under the sheriff’s deed ?
   Curia, per

Butler, J.

In 1826, the defendant, with a view of asserting her right to the land, cleared and sowed down the turnip patch described, and thereby acquired such a possession as might well be regarded a disseisin of Norvell, and a sufficient origin of a good title in herself. This disseisin and possession could not, however, ripen into a title without ten years continuous and open use of the land. The possession contemplated by the statute of limitations, must not only be notorious and definite at one period, but it must in some form, be continuous during the statutory time. That is, it should be definitely used for some purpose for ten years.

Although possessio pedis does not require actual occupancy, it implies enclosure, and use of the ground enclosed. I will not undertake to indicate in what way it should be used; in general, it should be cultivated, or perhaps it might be sufficient that it should be used for pasture. It is sufficient to say that defendant was in possession of this land but for one year, which could not avail her in defeating the rights of any of the parties interested in it. As against the purchaser at sheriff’s sale, or the plaintiff, there was no such trespass by possession, as to entitle either of them to an action to try titles. Until the trespass had been committed for which this action was brought, the plaintiff’s title was not put in jeopardy, and he was not bound to sue, and of course, as long as he had no cause of action, defendant had no foundation of title. The cutting and hauling of timber by defendant, could not effect a divesture of plaintiff’s title, according to our adjudications. According to these views, the plaintiff must have a new trial, and the motion is therefore granted.

See Infra, 447; 6 Rich. 62; 9 Rich, 27. An.

Riciiardson, O’Neall, and Evans, JJ., concurred.

Gantt, J.,

dissenting. I do not concur in this opinion. Norvell and Kennedy made an exchange of lands. Norvell took possession of the lot which he took in exchange, and held possession long enough to give him title by possession. *Kennedy exercised ownership over the land he took in exchange for the lot. A small spot was cleared and fenced for a turnip patch.

I think, under all circumstances, a title by construction, may well pass to Kennedy, &c.  