
    No. 140.
    Henry Watts, plaintiff in error, vs. Samuel Griswold, defendant in error.
    
       G owned a saw-mill near an uninclosed pine lot of land belonging to W. For four or five years he cut stocks for his mill, made roads and causeways ; and for several years more cut lightwood and firewood off the land: Held, that this was not such an open, notorious and visible occupation of the premises, under the circumstances of the case, as to notify the true owner of his intention to claim the fee.
    Action for land,' in Jones Superior Court. Tried before Judge Hardeman, October Term, 1856.
    This was an action brought by Samuel Griswold against Henry Watts for the recovery of a lot of land. The plaintiff relied upon a statutory title of seven years peaceable, continuous and adverse possession; the land was a pine lot uninclosed ; the proof was, that Griswold had a saw-mill near the land, and for several years cut stocks for his mill, made roads and causeways, and for other years cut lightwood and firewood off the land. Several errors are assigned, but the cause ^turned upon the following request and charge.
    Defendant requested the following charge:
    “ The true owner of land cannot be disseized without his knowledge, nor the Statute of Limitations run against him while he has no ground to believe that his seizin has been interrupted. And plaintiff’s possession to make a good statutory title must be open, notorious and visible for the full period of seven years, and that the occasional hauling of wood or lightwood, or both, off of the land, is not such open, notorious and visible possession as the law requires.”
    The Court said: “ I give you this request in charge, with these views of the Court, viz: If plaintiff went in under color of title and used the land as his own, by going on it and cutting sawlogs for his mill, and by making roads and causeways upon and through it for a time, and then continued to cut wood and lightwood and hauled them off, and did such ■acts and so used the said lot of land as to advertize the true .owner or other party of the holding at all times during the ■seven years, that there was an adverse holding ; and if this was kept up for seven years, it was sufficient to .give plaintiff a statutory title; hut if it ceased at all at any time during the seven years, it will not do.
    J. Rutherford, for plaintiff in error.
    E. A. Nisbet, for defendant in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

There is but a single question in this case: did the facts proven constitute adverse possession of the lot of land in dispute, so as to ripen into a statutory title in behalf of .Samuel Griswold, the plaintiff?

The testimony is .brief: Griswold owned a saw-mill near this uninclosed pine lot; for four or five years he cut stocks for his mill and hauled them from the premises, and made roads and causeways for that purpose; and for several years more, cut lightwood and firewood for the rail road off the .land. It is conceded, for the purposes of this decision, that •this kind of user continued for seven years. Was this such an open, notorious and visible occupation of this property, under all the circumstances of the case, as to manifest an intention on the part of Griswold to claim the fee ? We think not. And no case, we apprehend, can be found to warrant such a conclusion. If such were the law, the title of almost every proprietor of uninclosod'real estate in the neighborhood of all of our cities, towns and villages, would be jeopardized. For who has been fortunate enough to escape intrusions and trespasses — similar in character at least, if not to the same extent ? We can hardly conceive of a case where such acts as these would perfect a statutory title. The fallen logs removed for lightwood and firewood, and which constitute no part of the realty, would scarcely be missed or observed by the owner, unless very familiar with his grounds-; and the timber cut and carried away for lumber would only indicate by the stumps and tops which were left, that some wrong-doer or wrong-doers were making pretty free use of •that which did not belong to them; but this would fall far short of conveying to the tenant in fee, notice that his right to his domain was seriously controverted. Unlike the building a house, the cultivation of a field, the digging a mine, or -even the belting of a pine, forest for turpentine, the acts of -trespass, established by the evidence, are too roving and discursive to suggest the idea of a continuous possession. It does not appear but that this lot of land, or some portion, might not have been used for tillage or other purposes.

But we forbear to proceed further upon this beaten path. That Griswold bona fide claimed this land under color of ' title, is not disputed. He bought it, took a deed for it which was duly recorded, paid taxes on it and appointed an agent to overlook it. But notwithstanding all this, we are clear that his occupancy was not of such a character as to bar the right of entry of the grantee or true owner, and the Circuit •Judge should have instructed the Jury accordingly.  