
    John Bailey, et. al., v. Joseph Irby, et al.
    In an action of trespass to try title, the occasional cutting of timber and the exercise of such other acts of ownership over it, as men are accustomed to do over woodland, is not such a possession as will divest the owner of his right to the soil under the statute of limitations.
    The possession that will give a title, under the statute of limitations, must be an actual occupancy, a pedis possessio, definite, positive and notorious, 
    
    Tried before Mr. Justice Johnson, at Laurens, Spring Term, 1820.
    *This was an action of trespass to try the title to a tract of land. ,*. . .
    The plaintiffs claimed as the heirs at law, to William Riley, the younger, Lwho died in 1795, inherited from William Riley, the elder, to whom it was granted in 1771.
    The defendants claimed a part of the disputed land under a grant to Thomas Word, in 1785, and a part under a grant to Robert Hutchison, dated in 1786. The plaintiffs were infants at the time of the descent cast on the death of
    William Riley, the younger, in 1795, and a continued minority from that time to the commencement of the action prevented the statute of limitations from attaching subsequently, and the grants under which the defendants claimed being subsequent to that under which the plaintiffs claimed, the case turned upon the possession of the defendants, prior to 1795.
    A possession of more than five years of a small field, consisting' of a few acres on that part of the land granted to Thomas Word, was proved in him, from whom the defendants deduced their title, before 1795.
    The grant to Hutchison, covered lands without, as well as within the plaintiffs’, and it was proved that Hutchison, from whom the defendants also derived title, settled within his grant, but without the plaintiff’s line, more than five years before 1795, and cleared a field of ten acres, very near the line, and was regarded as the owner of all within his grant, as well that which lay within the plaintiffs’ lines, as without; and that from the time of his first settlement there he was accustomed to cut timber within his grant, and within the plaintiffs’ line, as he had occasion for it, and exercised all the acts of ownership over it, which men usually exercise over their woodlands, but he never erected any building, or made any clearing or inclosure within the plaintiffs’ lines.
    The jury found a general verdict for the defendants, and a motion was made for a new trial, on the ground :
    That the verdict was against evidence, so far as related to the lands granted to Robert Hutchison, no ^certain or notorious possession having been [-*04* established within the plaintiffs’ lines, and that the facts of having cut f timber occasionally on, and exercising like acts of ownership over it, was not such a possession as divested the plaintiffs.
    
      
       “It is requisite that the possession should he marked by definite boundaries.” Brandt v. Ogden, 1 John. Rep. 158.
      “ Adverse possession must be marked by definite boundaries, and be regularly continued down, to render it availing.” Doe v. Campbell, 10 John. 477.
      “ To constitute a disseisin of the owner of uncultivated lands, by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title; otherwise a man may be disseised without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seisin has been interrupted.” “The occasional cutting of grass within a meadow cannot amount to a disseisin.” Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. T. R. 418-9.
      See, also, Ringold’s Lessee v. Cheng, 4 Hall’s Amer. Law Jour. 128 ; Jackson v. Waters, 12 Johnson, 368 ; Morris v. Thomas, 5 Binney, 79. R.
      1 McM. 356, 447 ; 6 Rich. 67 ; post. 534; 2 McC. 291.
    
   The opinion of the Court was delivered by

Johnson, J.

This cause was tried before myself, and I distinctly stated to the jury, that the facts proven in relation to the land granted to Hutchison, did not, in my opinion, constitute such a possession as divested the plaintiffs of the title, and upon the best reflection, I am yet satisfied with that opinion. The plaintiffs having, as to that part of the land granted to Word, acquiesced in the verdict, the only question is, whether the occasional cutting of timber, and the exercise of such other acts of ownership over it as men are accustomed to do over woodland, is such a possession as will divest the owner of the right to the soil under the statute of limitation ?

It is not necessary, to the consideration of this question, to examine minutely all the provisions of the statute. It is sufficient to remark, that a possession of five years is a bar to the plaintiff’s right to recover, and what shall constitute the evidence of that possession is the only question. In the case of Jackson v. Schoonmaker, (2 John. Rep. 230,) the Court held, that it should consist in “ a real, substantial inclosure, an actual occupancy, a pedis possessio, definite, positive and notorious.” The good sense of these positions is, I think, apparent; they furnish on the one hand evidence of the honesty of the possession, and on the other they are calculated to apprise the plaintiff, unless he shuts his eyes upon it, that he who has such a possession, disregards his right or claims in hostility to him, and enables him to sue. But not so with him who enters only occasionally; he commits a petty trespass, and disappears without scarcely leaving a mark behind, and if discovered at all, the owner *is rather content to submit to it than seek redress through 4t>-' the means of a protracted and expensive lawsuit; or it may be done so secrectly as to elude detection; and it would be monstrous to allow one man to filch away the land of his neighbor without the possibility of guarding himself against it.

O'Neal, for the motion. M'Dujfie, contra.

But it is sought to take this case without these rules, by extending the defendant’s possession without the plaintiffs’ lines, to the extent of his grant, on the doctrine, that a possession of a part is the possession of the whole. This argument is answered already, and all the objections which apply to the first position, apply to this with increased force; until a trespass had been committed, the plaintiff could not maintain his action, and this would be divesting him without the possibility of his guarding against it. I am therefore of opinion that a repetition of casual trespasses ad infinitum, are but trespasses still, and is not such a possession as would bar the plaintiff’s right to recover; and I am inclined to think, for the same reasons, that this rule ought to prevail, whether the lands could be usefully occupied or possessed in any other way or not, as the same objections would equally apply.

This rule has a direct application to the facts in this case, and a new trial ought to be granted.

Colcock, ÍTott, Richardson, Gannt and Huger, concurred.  