
    Overton’s Heirs v. Davisson.
    September, 1844,
    Lewisburg-.
    [42 Am. Dec. 544.]
    (Absent Brooke and Allen, J.)
    i. Boundary of Land—Evidence—Calls and Descriptions of Survey of Neighboring Tract.—In a controversy concerning- the boundary or locality of a tract of land granted by the commonwealth pursuant to a survey, the calls and descriptions of a survey made by the same surveyor, about the same time, or recently thereafter, of a coterminous or neighbouring tract, upon which last mentioned survey a grant has also issued from the commonwealth, whether to a party to the controversy, or a stranger, is proper evidence upon such question of boundary or locality, unless plainly irrelevant.
    2. Same—Same—Declarations of Surveyor—When Ad= missible—In a controversy concerning the boundary or locality of a tract of land granted by the commonwealth, upon a survey made by a duly authorized surveyor, declarations by such surveyor, or by chaincarriers who assisted him in making such survey, or by other persons who were present at such survey, of the acts done by, or under the authority of such surveyoi, in making such survey, are admissible evidence, unless clearly irrelevant: provided that such declarations were not made post litam motam; and are not in contradiction of such surveyor’s official report of such survey; and that the persons who made the declarations, are dead at the time of the trial.
    *3• Writ of Right—Right to Opening and Conclusion of Case.§—On the trial of a writ of right, upon the mise joined on the mere right, the tenant is entitled to the opening and conclusion of the case before the jury.
    . Adversary Possession,—Interlock—When Posses^ sion of Part Possession of the Whole. —When land which is the subject of controversy, is embraced by conflicting grants from the commonwealth, to different persons, and the junior patentee enters thereupon, and takes and holds actual possession of any part thereof, claiming title to the whole under his grant; such adversary possession of part of the land in controversy, is an adversary possession of the whole, to the extent of the limits of the younger patent; and to that extent, is an ouster of the seisin or possession of the elder patentee, if the latter has had no actual possession of any part of the land within the limits of his grant.
    5. Same|!||—Same—ActuiabPossession of Part of Interlock by Both Patentees—Effect. —in the case above stated, if the older patentee is in the actual possession of any part of the land in controversy, at the time of the entry thereon by the junior patentee, then the latter cáh gain no adversary possession beyond the limits of his mere enclosure, without an actual ouster of the older patentee from the whole of the land in controversy.
    
      6. Samel] ||—Several Coterminous Grants to Same Party.—Upon the question of adversary possession, it is immaterial whether the land in controversy, is embraced by one, or several coterminous grants of the older, or younger patentee; in either case the land granted to the same person by several patents, is to be regarded as forming one entire tract.
    7. SameilH — Interlock—“The Open Question.”
      Quaere. Whether the possession of the junior patentee will be limited to his enclosure, by the actual possession of the elder patentee of a part of the land embraced in his grant, not embraced within the limits of the grant to the junior patentee.
    8. SameilH—Actual Occupation.—To constitute an adversary possession of land, there must be an actual occupation of some part of the land in controversy; or the use, or enjoyment of some part thereof, by acts of ownership equivalent to such actual occupation. And such adversary possession, cannot be acquired, by the open, exercise, of acts of ownership over the same, falling short of such actual occupation, use, or enjoyment.
    9. SameilH—Uncleared Patented Lands.—While patented lands remain completely in a state of nature, they are not susceptible of a disseisin or ouster of, or adversary possession against the older patentee, unless by acts of ownership effecting a change in their condition.
    10. Same|| ||—Possession of Land Prior to Emanation of Any Patent Therefor.—A possession of land, not held under a grant from the commonwealth, prior to the emanation of any patent therefor to a third person, cannot constitute an adversary possession thereof.
    11. Land Patents—Actual Occupation by Another at Time of Its Emanation.—The elder patent of the commonwealth confers seisin of the land embraced therein, though at the time of its emanation, there was an actual occupation of the land by another person.
    
      *12- Adversary Possession! 1—What Party Claiming under the Statute Must Show.—In a controversy between parties claiming land under the elder, and junior patentee, the party claiming under the latter, to protect his possession by the defence of the statute of limitations, must shew an actual possession of the lands in controversy, since 
      the emanation of the elder patent, for the time of limitation fixed by the statute.
    13. Same|| |—Possession Sufficient to Bar an Ancestor Is Sufficient to Bar His Heirs.—If the possession of the tenant in possession, was sufficient to bar the action of the ancestor of the demandants, at the time of his death, it is sufficient to bar the action.of his heirs.
    14. Patents—Survey—Fixed Corner.—The beginning corner of a survey, or of several dependent surveys, being fixed, in the absence of proof of any other corners, or boundaries, and of any calls for natural objects conflicting with the calls for courses and distances in the patents issued on said surveys, the identity of the land embraced therein, is to be ascertained by the courses and distances of the patents, beginning at the fixed corner.
    15. Same—Mistakes Not Affecting Validity.—A mistake in a patent calling for an object where the same is not found, does not affect its validity.
    This was a writ of right brought in 1831, in the circuit superior court of law and chancery for the county of Harrison, by the heirs of John Overton, deceased, against William Davisson. The demand-ants claimed title under a patent from the commonwealth, issued to their ancestor John Overton, and dated on the 23d of May 1786, for three thousand acres of land. The tenant claimed under two patents issued to Josiah Davisson, one for four hundred acres founded ,on a settlement right, and dated the 3d day of January 1787; and the other for eight hundred acres adjoining the former, and dated on the 23d of the same month. The tenant disclaimed title to all but five hundred acres.
    On the trial of the cause, after the demandants had introduced the patent to John Overton, and proved that he died in 1822 intestate, and that they were his heirs, they introduced the survey upon which the patent issued, and also two other surveys made for the said Overton, and the patents which were issued upon these surveys. The first of these surveys called to begin at a poplar, on the west bank of Dost run. The second called *to lie on the southeast of the first survey, and to begin at a corner of that survej’, and to run from thence with one of its lines. The third called to lie on the southeast of the second, and beginning at one of its corners. The last was that under which the demandants claimed in this action; and in order to fix its locality, it was necessary to establish the beginning corner of the first survey. For this purpose, after proving that the surveyor had been dead many years before the commencement of its action, they offered evidence to prove the statements made by the surveyor, in relation to the execution by him of said surveys ; these statements having been made about the time, or shortly ‘after"'the surveys were made. To the introduction , of this evidence, the tenant by his counsel, objected; but the court overruled the objection, and admitted the evidence, so far as the statements related to the acts of the surveyor when in the exercise of his official duty in making the surveys; and were not inconsistent with his official report of such surveys, but in support of it. To the admission of this evidence, the tenant excepted. This is the tenant’s first bill of exceptions.
    The court having decided to admit evidence of the statements of the surveyor, the demandants then proved by a witness, that the surveyor came to the house of witness’s father, in company with a certain Major Powers, and James M’Kinney; and that whilst there, the surveyor stated that he had that morning marked a poplar for a beginning corner to some surveys he was making for said John Overton; and described the spot on Dost run where said poplar stood. That the witness some three or four months thereafter, saw a poplar marked as a corner, standing at the place described by the surveyor. That said Powers, and M’Kinney, were the only persons in company with the surveyor, who stated at the time, that they were his chaincarriers in making said surveys. The demand-ants also proved that Powers had *died many years prior to the institution of this suit; and they read copies of the certificates of survey, to shew that the surveyor had omitted to note who were the chaincarriers. The demandants then offered a witness to prove that Major Powers told him, the day after said survey was made, that, he ..was, one of the chaincarriers employed by said surveyor to carry the chain for him in making said survey for said Overton; and that said Powers shewed the witness the poplar corner marked as the beginning corner of said Overton’s survey No. 1; and told witness, on the day after said survey was made, that they had marked said poplar on the preceding day, as and for the beginning corner of said survey No. 1. To the introduction of this evidence, the tenant by his counsel objected; and the court sustained the objection.
    In the farther- progress of the trial, one of the demandants’ witnesses stated that in 1792 he examined the poplar above mentioned, and that it was marked as a corner on the easterly, westerly, and southerly sides; and then the tenant introduced the plat and survey No. 3, and claimed to lay it on the east of Overton’s survey No. 2: whereupon, the demandants, to account for the said tree being marked on the east side, and to disprove the correctness of the location insisted on by the tenant, offered to introduce a plat, and certificate of survey, made out for John Thomas, by the same surveyor who made Overton’s surveys, dated 28th April 1785; and also another survey made by the same surveyor, for Charles De,wis, ‘dated-29th’April'T785, the same month and .year, in which Overton’s surveys were made. The first of said surveys called to begin at the east corner of Overton’s survey No. 1, and thence with Overton’s line to the aforesaid poplar and the second called for the first. But the court excluded the evidence and the demandants excepted. This exception embraces the two last mentioned decisions. This is the demandants’ first bill of exceptions.
    *The demandants also introduced evidence tending to prove that, at the time of the issue of the grants to John Overton, there was no actual possession of the lands embraced therein, held adversely by the tenant, or those under whom he claimed; or that no person actually resided on said lands at that time, or at any time previous to 1799.
    In the progress of the cause the court directed a survey to be made, which taking the poplar as the beginning corner of Overton’s survey No. 1, shewed that the land in controversy was included within the boundaries of the patent under which the demandants claimed.*
    The tenant introduced in evidence, the patents before mentioned as having issued to Josiah Davisson. He also introduced a certificate of the commissioners appointed to adjust the claims to unpatented lands, dated in 1781, in favour of Josiah Davisson, for four hundred acres of land on Pleasant creek, to include his settlement made in the year 1775. He also introduced a deed dated in 1801, from Josiah Davisson to himself, for three hundred acres; but the record no where shews how he derived title to the other two hundred acres.
    The tenant then introduced evidence tending to 1 prove that settlements .were, made on the land embraced in the patent for four hundred acres, in 1775; arid that the rights of the parties making thése settlements,' had been vested in'Josiah Davisson, prior to the emanation of the patents to him; that th'e three hundred acre tract held by the tenant, was part of the land,included in the patent founded on. the right of settlement ; and that the two' hundred acres was part of 'the land included in the patent founded on the pre-einption right; that Josiah Davisson resided on the land embraced in the first patent in 1775, used, arid cultivated the same, claiming it as.'his'own, from that time until 1801, when he conveyed it to the tenant, who took immediate possession thereof, arid has continued to reside thereon, claiming it as his own, to this time.
    After the evidence in the cause was closed, the demandants by their counsel, insisted upon their right to commence, and conclude the argument before the jury; but the court held that the tenant had the. affirmative of the issue; and was entitled to open, and conclude the argument. To this opinion of the court the demandants excepted. This is the demandants’ second bill of exceptions.
    The demandants then moved the court to instruct the jury:
    1st. That no possession held by the tenant, or those under whom he claims, prior to the emanation of the patent under which the demandants claim, will bar the demandants in this action, unless such possession .was held by the tenant, or those under whom he claims, under a grant from the commonwealth.
    2d. That if no prior grant from the commonwealth had issued for the land included within the patent under which the demand-ants claim, the patent from the commonwealth to John Overton, invested him with seisin of the land so as aforesaid included within his patent.
    3d. That to constitute an adverse possession, such as would bar the demandants’ claim, there must have been an actual entry upon, and occupancy of the lands, by the tenant, or those under whom he claims, under, title, or claim of title, adverse to that under which demandants claim; and that such actual adverse possession must have commenced since the issuing of the grant to the ancestor of the demandants; and have continued thirty years after the adverse possession, and occupation commenced, during the lifetime of the said John Over-ton ; or if the same had not continued thirty years during the lifetime of John Overton, then the said actual adverse possession must have commenced as aforesaid, and *be continued by the tenant, or those under whom he claims, for fifty years before the commencement of this action.
    4th. That if from the evidence, they should believe that at the time of making the original survey, a poplar corner was made, and marked as' and for a beginning corner ' of said survey No. 1; and if they believe said poplar corner so made, and marked, stood at the place designated on the plat and report returned in this cause, at letter A, then, in the absence of proof of any other corners, or other boundaries, and if any calls for natural objects, conflicting' with the calls for courses and distances in said patents No. 1, 2 and 3, the jury should make out the identity of the land claimed by the demandants, by the courses and distances called for by the'said patents No. 1, 2 and 3, from the said corn.er at A; although they should be of opinion that said surveyor, when making said original survey on which said patents No. 1, 2 and 3 were founded, never saw any of the lines, or marked any of the corners called for, except said corner at A.
    5th. That if they are satisfied any object is called for in said patents, or either of them, at a place where the same is not found; yet if they are satisfied from the evidence, and other calls of the patent, that the call for such objects at the place where the same is not found, was made through mistake; and it they are satisfied from the evidence, that the land described in said patents to John Overton, is situated where the demandants claim it to be, a mistake in calling for an object where the same is not found, should not vitiate or destroy the validity of the patents under which the demandants claim.
    The court gave 'these instructions; and the tenant ■ excepted. This is the tenant’s second bill of exceptions.
    The demandants farther moved the court to instruct the jury, that if they were satisfied from the evidence, *that the land claimed by the tenant, is part of the land so as aforesaid granted to said Josiah Davisson; and that the same is covered by the grant to the said John Overton, under which the demandants claim; that the issuing of such subsequent grant to the said Josiah Davisson, and the payment of the taxes on the land so granted to him, do not amount to an ouster of the said John Overton, of the seisin conferred upon him by his grants; and that said Overton could not be disseized so long as the land included within the grant to Davisson, remained unoccupied, and in a state of nature; or until the said Josiah Davisson, or some one claiming under him, actually entered on said land included within his patent aforesaid, and used the same by taking the profits. The court being of opinion, that the issuing of the grant aforesaid, to Davis-son, and the payment of taxes on the land so granted to him, were not sufficient of the themselves, to work the ouster of the prior grantee Overton; but that an entry was necessary to such ouster; and that such entrj7 should be accompanied by1 such open acts of ownership as were consistent with a claim of title to said land; but that such acts of ownership were not to be restricted to taking the profits; the court, thereupon, gave the instruction, in the terms proposed by the demandants, with the addition after the word “profits,” of the words “or by the open exercise of acts of ownership over the same.” To so much of the instruction also is embraced in the words added by the judge, the demandants excepted. This is the demandants’ fourth bill of exceptions.
    The tenant also moved the court to instruct the jury, that without proof of actual entry by John Overton in his life time, or the demandants since his death, upon the land granted to Josiah Davisson ; the grant to said Overton, did not confer upon him or his heirs, such seisin as will entitle the demandants to recover the land in the possession of the tenant, if the jury is satisfied from the ^testimony in the cause, that at the time the grant issued to Overton, Josiah Davisson was in the actual possession of the land granted to him, and that he and the tenant have continued in possession thereof, under the certificate of the commissioners for adjusting claims to unpatented land, and the grant founded thereon, claiming the same adverse to the said Overton. But the court being of opinion, that it is a principle of the common law of England, that the king cannot be disseized; that this prerogative of the crown, like the maxim nullum tempus occurrit regi, has devolved upon the commonwealth ; and that accordingly the commonwealth cannot be disseized of its public domain ; that- a transfer of the legal title by the commonwealth of any portion of its domain to an individual, must be (under the statute) by a grant-; that a grant by the principles of the common law, and by force of the statute immediately on its execution, divested the estate out of the commonwealth, and vested it in the grantee; and therefore as the commonwealth could not have been disseized, its grant confers seisin of the land granted, upon the grantee; and as actual seisin (by force of the statute), is not necessary to maintain a writ of right, the legal constructive seisin conferred by the grant itself, will be sufficient for that purpose. That the ordinances of the convention adopted June 24th, 1776, and October 1777, by which settlements on the western waters were authorized, only gave to the settler a pre-emption or preference; and that it was not until the act of May 1779, that a mode was prescribed by which a settler could obtain a grant of the legal title; that until he obtained such grant, he had only an equity, and the legal title remained in the commonwealth; and the possession which the settler had obtained, was under and not adverse to the commonwealth, and was not a wrongful possession, which is necessary to work a disseisin; (even if the commonwealth could be dis-seized;) and that in order to constitute a *bar under the statute of limitations, to the prosecution of a writ of right, the tenant must shew that his possession was adverse to the claim of the demandants, or those under whom he derived title. In the present case, therefore, the possession of the tenant, by virtue of his certificate of settlement, previous to the grant to the ancestor of the demandants; cannot be connected with his possession subsequent to said grant, in order to constitute the bar created by the statute of limitations ; 1st. Because such prior possession did not work a disseisin of the commonwealth; and 2d. Because it was not an adverse possession ; and that consequent^ the tenant can only compute his possession, and the possession of those under whom he claims, for the purpose of availing himself of the bar created by the statute of limitations, from the date of the grant to the ancestor of the demandants. The court, therefore, refused the instructions asked for by the tenant; and to this opinion of the court, the tenant excepted. This is the tenant’s third bill of exceptions;
    The tenant farther moved the court to instruct the jury, that a possession by Josiah Davisson, under whom the tenant derived title, if a part of either one of the tracts of land granted to him, must be esteemed and taken as a possession of the entire tract,, co-extensive with the boundaries described in the tract; and that such possession of one of said tracts, must be esteemed and taken as possession of the coterminous tract granted to him, (it appearing that both grants issued at the same time,) except so far as the said tracts, or either of them, or a part thereof, may have been in the actual adverse possession of the demandants, or other persons claiming title thereto; and notwithstanding it shall appear that the said tracts of land, or either of them, lay within the boundaries of the grant to the ancestor of the demandants. The court gave this instruction ; and the demandants excepted. This is the demandants’ third bill of exceptions.
    *The tenant farther moved the court to instruct-the jury, that if they believed from the evidence, that the tenant and those under whom he claimed, had actual possession of the land in controversy, holding the same adverse to the title of the demandants, at the time of the death of their ancestor, and for thirty years prior thereto, that it constituted a bar to the demandants’ right of recovery in this action. And the court being of opinion that if there was such an adverse possession in the tenant, and those under whom he derived title, as would have barred a recovery in a writ of right bj’ the ancestor of the demandants, at the time of his death, that the tenant has a right to avail himself of such bar in the present action, although fifty years may not have elapsed since the adverse possession commenced, as against the demand-ants ; gave the instruction as asked for; and the demandants excepted. This is the demandants’ fifth bill of exceptions.
    The jury found a verdict for the tenant; and the court gave judgment accordingly; and then the demandants applied for, and obtained an appeal to this court.
    C. & G. N. Johnson for the appellants.
    W. A. Harrison for the appellee.
    
    
      
      He bad been counsel in the cause in the court below.
    
    
      
      Boundary of Land—Evidence—Calls and Descriptions of Survey of Neighboring Tract.—The rule laid down in the first headnote as to when the calls and descriptions of a survey of one tract of land is competent evidence in a controversy concerning the boundary of a coterminous or neighboring tract, seems the settled lawin Virginia and West Virginia. See Clements v. Kyles, 13 Gratt. 475, 479; Reusens v. Lawson, 91 Va. 232, 21 S. E. Rep. 347; McMullin V. Lewis, 5 W. Va. 154; King v. Watkins, 98 Fed. Rep. 920.
      In each of these cases unsuccessful attempts were made to extend the rule stated in the principal case. In Clements v. Kyles, 13 Gratt. 468, 479, as tending to establish the true boundaries of a certain tract of land, two surveys made years after the survey of the land in controversy and by a different surveyor were offered in evidence and admitted by the circuit court; but the appellate court, reversing the circuit court, held that such surveys could not come within the rule of Overton v. Davisson, and that therefore they were not admissible evidence.
      In Reusens v. Lawson, 91 Va. 226, 231, 21 S. E. Rep. 347, it was held that a certain survey was inadmissible in evidence upon the question of the boundary of certain land because no grant had ever been issued by the commonwealth upon it.
      In McMullin v. Lewis, 5 W. Va. 146, for the purpose of establishing the identity of the tract in controversy, surveys of certain contiguous tracts, together with the grants which issued thereon, were admitted in evidence by the lower court. These surveys were all made by survey ors other and different from the surveyor who made the survey of the tract in question. The appellate court reversed the judgment of the lower court, holding that the surveys and grants admitted did not fall within the operation of Overton v. Davisson. In delivering the opinion of the court. Maxwell, J. (p. 351), said: “In the case of Clements v. Kyles, 13 Gratt. 468, an effort was made to extend the doctrine of Overton v. Davisson. To identify and locate a certain wood survey, two other grants upon surveys not made by the same surveyor who made the wood survey, were allowed by the circuit court to be given in evidence, but the court adhered to the rule laid down in Overton v. Davisson, and reversed the circuit court. These are the only two cases to which our attention has been called, decided by the Virginia courts, in which the question has been raised. The refusal of the court in the case now before us to exclude the surveys and the grants founded thereon, from the jury, as evidence tending to locate the survey in dispute, was in violation of the rule laid down in the case of Overton v. Davisson, as limited and explained by the case oi Clements v. Kyles, and therefore erroneous, as no principle or precedent can be found for extending the rule any farther than it is laid down in Overton v. Davisson.”
      Again, in King v. Watkins, 98 Fed. Rep. 913, 921, Judge Paul after setting forth the doctrine laid down in the principal case as the one sustained by the Virginia decision, says : “The survey which is offered in evidence was not made by the same surveyor about the same time or recently thereafter. The cases cited above all use the language employed by the court in Overton’s Heirs v. Davisson. The court knows of no decision which holds that a survey made by a different surveyor and at a different time from the surveyor and the time stated in the survey in controversy is proper evidence upon the question of boundary or locality in fixing the boundary lines of the survey in controversy. The decisions of the courts and the statements of text writers being uniform in stating that a survey made at the same time or recently thereafter by the same surveyor is admissible to show the boundaries of another survey, and the court finding no decision, nor the statement of any : te?ct writer, and being referred to none by counsel, ! that a survey made by a diiferent surveyor, at a : different time, is admissible to show the boundary 1 lines of a survey in controversy, the court holds that the survey, and the grant issued thereon, ] offered by the defendants in this case, are not admissible in evidence.”
    
    
      
      Same—Same—Declarations of Surveyor—When Ad- || missible—After stating the rule laid down in the : second headnote, Judge Lee, in Smith v. Chapman. 10 Gratt. 456, said: “Here the declarations of the chain : carrier that were rejected were not in relation to ' an3T act done by the surveyor or under his authority . at the time of making the survey, but were rather in the nature of opinions or deductions of the chain carrier from facts which he supposed to be within his knowledge, but which he failed to state. They are clearly not within the rule propounded in Overton v. Davisson, and were I think properly rejected by the court.” See principal case also cited in High v. Pancake, 42 W. Va. 608, 26 S. E. Rep. 538. See also, foot-note to Clements v. Kyles, 13 Gratt. 469.
      §Writ of Right—Right to Opening and Conclusion of Case.—See monographic note on “Argument of Counsel ” appended to Coleman v. Com., 25 Gratt. 865.
    
    
      
       Adversary Possession—Interlock—When Possession of Part Is Possession of the Whole.—In Garrett v. Ramsey, 26 W. Va. 356, it is said: “If the senior patentee never entered upon any part of his grant, so that he was only constructively seized of the land including the interlock, and the junior patentee has actual possession of a portion of the land lying within the interlock and thus constructive posses-sion of the whole of the interlock as well as of the land in his grant outside of the interlock, then the mere constructive seizin of the senior patentee to the land in the interlock must yield to this constructive possession of the jurior patentee to all the laud in the interlock, and the result is an ouster of the senior patentee from all the land in the inter-lock as effectual as though the junior patentee had actual seizin of all the land in the interlock. This seems entirely just and right. The constructive possession of the junior patentee acquired by taking possession of a part of the land in the interlock ought in that case to override the mere constructive seizin of the senior patentee. This is abundantly sustained by all the Virginia authorities. Overton Davisson, 1 Gratt. 223-4; Koiner v. Rankin’s Heirs, 11 Gratt. 427-8; Cline v. Catron, 22 Gratt. 392. See also, Buford v. Cox, 5 J. J. Marshall 587, 589, 590; Calk v. Lynn's Heirs, 1 A. K. Marshall 346; Westr. Price’s Heirs, 2 J. J. Marshall 280; Fox v. Hinton, 4 Bibb 529.” To the same point, see the principal case cited Cline v. Catron, 22 Gratt 393; Stull v. Rich Patch Co., 92 Va. 276, 23; S. E. Rep. 293: Ilsley v. Wilson, 42 W. Va. 770, 26 S. E. Rep. 555; foot-note to Koiner v. Rankin. 11 Gratt. 420.
    
    
      
       : Adversary Possession.—On all matters pertaining to adverse possession, see monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
      : ' . See principal case cited on the general subject of adverse possession, in Witten v. St. Clair. 27 W. Va. 772; Taylor v. Philippi, 35 W. Va. 560, 14 S. E. Rep. 132.
    
    
      
       Same—Same—Actual Possession of Part of Interlock by Both Patentees—Effect.—See the principal case cited in Garrett v. Ramsey, 26 W. Va. 357, 374; footnote to Taylor v. Burnsides, 1 Gratt. 165.
    
    
      
      Same—Several Coterminous Grants to the Same Party—in Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. Rep. 1009, Mr. Justice Harlan, delivering the opinion of the court, said: “In considering the question of the possession of the various tracts of land claimed by the plaintiffs as heirs at law of Caper-ton the court below proceeded upon the ground that, the surveys being coterminous, all the tracts should be regarded as one tract. ‘Upon the question of adversary possession’ the supreme court o± appeals of Virginia said in Overton's Heirs v. Davisson, 1 Gratt. 211, 224: ‘It is immaterial whether the land in controversy be embraced by one of several coterminous grants of the older patentee, or one of several coterminous grants of the younger patentee. In either case, the lands granted to the same person by several patents must be regarded as forming one entire tract.’ The same principle was announced in Ewing v. Burnett, 11 Pet. 41, 53, and in Coal Co. v. Doran, 142 U. S. 417, 443, 12 Sup. Ct. 239. This is substantially the case made by the plaintiffs. It would seem to be sufficient to sustain their claim to ownership of these lands, unless it has been overthrown by the evidence adduced by the defendants.”
      If the same owner or claimant has several coterminous tracts under different claims of title, and he has actual possession of part of but one of such tracts, he will in law be regarded and treated as having the actual possession of the whole of each and all of said coterminous tracts. Garrett v. Ramsey, 26 W. Va. 370, citing principal case.
    
    
      
      Same—Interlock—“ The Open Question.”—See footnote to Kincheloe v. Tracewells, 11 Gratt. 587; Garrett v. Ramsey, 26 W. Va. 372; Turpin v. Saunders, 32 Gratt. 38, all citing principal cáse.
      See || || on page 91.
    
    
      
      Same—Actual Possession.—A. foot-note to Taylor v. Burnsides, 1 Gratt. 165, collects the cases citing thé principal case on this point.
    
    
      
      Same—Uncleared Patented Land.—For the proposition laid down in the ninth headnote, see the principal case cited in Harman v. Ratliff, 93 Va. 253, 24 S. E. Rep. 1023; Koiner v. Rankin, 11 Gratt. 420, 429, and foot-note.
      Same—Continuity of Possession Necessary,— See principal case cited in Hollingsworth v. Sherman, 81 Va. 674; foot-note to Koiner v. Rankin, 11 Gratt. 420. See also, foot-note to Taylor v. Burnsides, 1 Gratt. 165.
      Same—Color of Title—Extent of'Possession.—Where a person enters upon land claiming it under a color of title by deed or other writing, he acquires an actual possession to the extent of the boundaries contained in such deed or writing, unless some part of the land is in the possession of some other claimant. Adams v. Alkire, 20 W. Va. 485, citing the principal case.
      To the same effect, see the principal cáse cited in Oney v. Clendenin, 28 W. Va. 53; foot-note to Kincheloe v. Tracewells, 11 Gratt. 588; foot-note to Taylor v. Burnsides, 1 Gratt. 165.
    
    
      
      Adversary Possession—Actual Possession—Must Be Shown by Whom.—Deeds confer constructive possession ; but, under the statute, actual possession must be shown by him asserting it. Bennett v. Pierce, 45 W. Va. 658, 31 S. E. Rep. 973, citing principal case ; Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. Rep. 255 ; Koiner v. Rankin, 11 Gratt. 420.
    
    
      
      This survey is not in the record, hut th'e'fact is stated in one of the hills of exceptions. " ' " •
    
    
      
      The cause was argued before tbe appointment of the present reporter.
    
   BALDWIN, J.,

delivered the opinion of the court.

The court is of opinion, that in a controversy concerning the boundary or locality of a tract of land granted by the commonwealth, pursuant to a survey, the calls and description of a survey made by the same surveyor, about the same time, or recently thereafter, of a coterminous or neighbouring tract, upon which last mentioned survey, a grant has also issued from the commonwealth, whether to a party to the controversy, or a stranger, is proper evidence upon such question of boundary *or locality, unless plainly irrelevant; to have such weight with the jury as under all the circumstances, they may consider it entitled to. And, therefore, that the said circuit court erred in rejecting the surveys for Thomas and Lewis, mentioned in the second branch of the demandants’ first bill of exceptions.

The court is further of opinion, that in a controversy concerning the boundary or locality of a tract of land granted by the commonwealth, upon a survey made by a duly authorized surveyor, evidence is properly admissible of declarations by such surveyor, or by chaincarriers who assisted him in making'-such~survey,'-or- by other persons present at such survey, of the acts done by, or under the authority of, such surveyor, in making such survey, unless plainly irrelevant; and as to the persons present at such survey, to have such weight as the jury, under all the circumstances, may consider it entitled to: provided however, that such declarations were not made post litara motam, and are not in contradiction of such surveyor’s official report of such survey; and provided that the person or p’ersons'who'made such declarations, be dead at the time of the trial: and, therefore, that there is no error in the decision of the said court, admitting the evidence of the declarations of the surveyor William Pettyjohn, mentioned in the tenant’s first bill of exceptions : But that said court erred in rejecting the evidence of the declarations of Major Powers, mentioned in the first branch of the demandants’ first bill of exceptions.

The court is further of opinion, that on the trial of a writ of right, upon the mise joined on the mere right, the tenant is entitled to the opening and conclusion of the cause before the jury: And, therefore, that there is no error in the decision of the said circuit court stated in the demandants’ second bill of exceptions.

The court is further of opinion, that where the land in controversy is embraced by conflicting grants from *the commonwealth, to different persons; and the junior patentee enters thereupon, and takes and holds actual possession of any part thereof, claiming title to the whole under his grant; that such adversary possession of part of the land in controversy, is an adversary possession of the whole, to the extent of the limits of the youngerpatent; and to that extent is an ouster of the seisin or possession of the older patentee, if the latter has had no actual possession of any part of the land within the limits of his grant. But that if the older patentee, at the time of such entry of the younger patentee, is in the actual possession of any part of the land in controversy; then that the latter can gain no adversary possession, beyond the limits of his mere enclosure, without an actual ouster of the older patentee, from the whole of the land in controversy. And, moreover, that upon- the question of adversary possession, it is immaterial whether the land in controversy, be embraced by one, or several coterminous grants of the older patentee; or one or several coterminous grants of the younger patentee : in either case, the lands granted to the same person by several patents, must be regarded as forming one entire tract. Wherefore, the court, so understanding the instruction of the said circuit court to the jury, stated in the demandants’ third bill of exceptions, is of opinion that there is no error therein, so far as it conforms to the opinions above expressed.

The remaining question arising on the third-instruction,, is, whether the actual possession under the elder patent, that is to say, the pedis positio, or actual occupancy by building, clearing, cultivating, or enclosure, which would limit the adversary possession under the junior patent, to that part of the interlock or lap, within his enclosure, must be of a part of the land within the lap; and whether such actual possession under the elder patent, of part of the land not within the lap, would thus limit the adversary possession under the junior patent *to his enclosure. On this question no judgment is pronounced, because of the diversity of the opinions of the judges thereon ; and because of the high probability that whatever that judgment might be, it would have no practical effect in this particular case.

The court is further of opinion, that where lands have been granted by the commonwealth to different persons, by conflicting patents, the junior patentee cannot, under any circumstances, disseize or oust the older patentee from, or acquire an adversary possession of, the land in controversy, but by the actual occupation of some part thereof, or the use or enjoyment of some part thereof, by acts of ownership equivalent to such actual occupation: and that while such patented lands remain completely in a state of nature, they are not susceptible of a disseisin or ouster of, or adversary possession against, the older patentee, unless by acts of ownership effecting a change in their condition. And the court, so understanding the instruction stated in the demandants’ fourth bill of exceptions, as asked for by the demandants’ counsel, is of opinion, that the said court erred in not giving the same as asked for, without the addition thereto of the clause, ‘ ‘or by the open exercise of acts of ownership over the same;” whereby a disseisin or ouster of, or adversary possession against, the older patentee, was recognized as effected by acts of ownership falling short of such actual occupation, use or enjoyment as aforesaid.

The court is further of opinion, that there is no error in the instruction to the jury stated in the demandants’ fifth bill of exceptions; nor in the five several instructions to the jury stated in the tenant’s second bill of exceptions; nor in the refusal of the instruction asked for by the tenant’s counsel, stated in the tenant’s third bill of exceptions.

It is, therefore, considered by the court, that the said judgment of the said circuit court be reversed and annulled; *and that the plaintiffs in error recover against the defendant in error their costs by them expended in the prosecution of their writ of error aforesaid here: and this court proceeding to render such judgment as the said circuit court ought to have rendered, it is further considered that the verdict of the jury be set aside, and a new trial of the mise joined between the parties awarded; upon which new trial the said circuit court is to be governed by the principles above declared. 
      See || || on page 91.
     