#### TURNER BYNUM vs. JOHN CARTER.

The occupation of pine land, by annually making turpentine on it, is such an actual possession, as will oust a constructive' possession by one, claiming merely under a superior paper title.

Where the extent of a wrong-doer’s possession is so limited as to afford a fair presumption, that the party mistook his boundaries, or did not intend to set up a claim within the deed of the other party; it would be a proper ground for saying, that he had not the possession, or that it was not adverse. But it is otherwise, where the possession was wilful, open and notorious.

The entry of an owner upon a trespasser will enable the former to maintain trespass; but it must bo an entry for the purpose of taking possession, which may be evinced by acts of ownership on the land asploughing it or the like, or by a formal declaration of the intention accompanying the entry.

But although such entry be made, yet if the wrong doer continue his possession, the deed of the owner, not being made on the land and such adverse possession continuing, is not valid to pass a title to the land.

The cases of Carien v Burnett, 1 Dev. & Bat. 546, Green v Harman, 4 Dev, 158, and Carrv Carr, 4 Dev. & Bat. 179, cited and approved.

Appeal from the Superior Court'of Law of Edgcomb County, at Spring Term, 1844,• his Honor Judge Pearson presiding.

This was an action of trespass quart clausum frr.git, commenced in May, 1841. The locus in quo is a slip of land, about half a mile long and from 100 to 150 yards wide, containing about 26 acres. The plaintiff shewed the title to be in Susan Hines on the first of September, 1840, as a part of a large tract, containing about 200 acres, which she sold and conveyed to the plaintiff by deed, hearing date the 1 st September, 1840, and containing a. general warranty, “ except as to a small part claimed by Carter,” the defendant. Miss Hines was an infant until a short time before her sale to the plaintiff; and Richard Hines was her father and guardian, and kept a tenant on the land from 1828 to the date of the deed, but the tenant occupied the upper part of the tract *311and had no actual possession of any part of the 26 acres. The pleas were not guilty and liberum tenementum. On the trial the defendant shewed a patent to one Ellis, issued in 1822, for 57? acres of land and including the slip of 26 acres ; and shewed further that in 1834 Ellis placed a tenant on his tract, who lived on a part of the tract without the limits of the 26 acres in dispute; but who, in that year, boxed all the pine trees suitable for making turpentine, as welf within the disputed part as on the residue of the tract, and continued to cultivate the trees, in the usual way of making turpentine, regularly, every year up to the year, 1839, inclusive : And that in January, 1840, Ellis sold and conveyed to the defendant, who entered upon the lands and cultivated the same trees during the years 1840 and 1841. It appeared in evidence, that the process of making turpentine is, after the boxes are cut, to begin operations about the 1st of April, and chip the trees so as to allow the gum to exude and run into the boxes below, and every eight or ten days, -after chipping particular trees, to dip the turpentine collected in the boxes and chip the trees afresh.- This continues until about the 1st of October, when the gum ceases to flow, and that, which has become hard on the trees during the summer, is scraped down; which terminates the cultivation for that year. The trees then stand until the next Spring, when the process is renewed; and so from year to year until the trees become exhausted, which may be, according to the industry with Which the' business of chipping is plied, from five six to ten years. No fencing or inclosure around the land is required. The slip of 26 acres consists of about ten acres of old field, grown up in young pines, and the residue swamp, excepting a few spots on which the original growth of pines, fit for turpentine, stood,- amounting to some thirty or forty or more. The locus in quo is situate on the edge of the swamp, and no road passed within sight of it. In August, 1840, Mr. Hines, at the request of his daughter, being in treaty for the sale of the land to the plaintiff, went on the disputed land, and found the defendant there the *312trees and making turpentine, and told him he must quit trcs-on ^e land or he would be sued. To that the defend'ant made no answer, but continued his operations, making two barrels of turpentine that year on this piece of land, and also renewing the business and carrying it on the next year, 1841. The deed from Miss Hines to the plaintiff was not executed on the land.

The defendant’s counsel insisted that the plaintiff could not recover, because the defendant was in the actual adverse possession at the time the deed was executed to the plaintiff, and that the plaintiff never had such a possession as enabled him to maintain trespass. The plaintiff’s counsel insisted that, there being no house nor enclosure of the defendant, the fact of his attending the turpentine trees did not amount to a continuing possession, but constituted so many distinct trespasses every time he went on the land, and as Miss Hines had a tenant on a part of the tract and had title, this gave her in law the possession of the whole: and, supposing that, when the defendant went on her land, this disturbed her possession for the time, still, the instant he went oft’ her constructive possession took effect again, and there was no proof of an actual possession by the defendant, at the time the deed was delivered. Secondly, that tending some thirty or forty turpentine trees, in an out of the way place, was not such an open and notorious possession, as the law required to divest the possession of the real owner. Thirdly, that the entry of Mr. Hines, as his daughter’s agent, in August, 1840, revested the possession, so that she could then bring trespass, or make a deed to the plaintiff and enable him to bring the action.

The Court instructed the jury, 'that, up to the time when Mr. Hines came on the disputed land, the possession of it was in the defendant, by reason of the regular tending the turpentine trees by himself and those under whom he claimed'; and that if the jury believed,, that the defendant did not abandon his possession, after he was forbidden to trespass further, but remained on the land, after Hines left it, and con*313tinued to cultivate the trees that year and resumed the vation the next, the possession was legally in the defendant and held adversely by him at the time Miss Hines conveyed to the .plaintiff, although the defendant might not in fact have had his foot on the disputed kind at the instant the deed was executed; and, therefore, that the locus in quo did not pass by the deed to the plaintiffs and he had not the title nor the possession, which would enable him to maintain this action.

The jury found the defendant not guilty, and from the judgment rendered pursuant to this verdict, the plaintiff appealed.

B. F. Moore & J, R. Bryan for the plaintiff.

Badger & Mordecai for the defendant.

Ruffin, C. J.

As the paper titles of Miss Hines and the defendant both covered the locus in quo, and that of the former was the better title, the possession of the disputed land was constructively in her, unless the acts of Ellis and the defendant amounted to actual possession of the locus in quo; in which case Miss Hines must be deemed to have been ousted of her possession of that part of the land covered by both conveyances. Carson v Burnell, 1 Dev. & Bat. 546. This brings up the question, whether* the making of turpentine, without a residence on the land, or the enclosing and cultivating a part of it in crops of grain or the like, constitutes possession actual and adverse, so as to amount to a dispossession of the true owner. The question, though not brought directly into judgment in this Court hitherto, is not entirely new, having several times occurred incidentally and been often thought of by the profession. We are all of the same opinion on it with his Honor. That opinion was intimated in Green v Harman, 4 Dev. 158; and was almost necessarily implied in what was said in Carr v Carr, 4 Dev. & Bat. 179. The evidence in this case shews, and every one acquainted with the operation must be sensi-*314Me, that there can hardly be a more positive, direct or open exercise continued dominion over land, than the making of turpentine from year to year. It occupies the whole time o£ engag6(j jn ft for more than the half of every year, and, as yielding a regular annual crop, the cultivation of the trees is a steady employment, through a series of years. Nothing can be more striking to the observation than the trees which are tended for turpentine ; being chipped as high as a man can reach with a round shave, as it is called, on a long handle, and thus becoming whitened by the hard turpentine for half their circumference and to the height of twelve or fifteen feet. They cannot fail to attract the attention of those who come in view of them, and therefore give to this operation, as an act of ownership, as much notoriety, as perhaps any thing else can, unless it may be the actual residence of the party. And from the nature of the business and the period requisite for its prosecution, it may not only be seen, that the trees are tended, but the owner of the land has every requisite opportunity of discovering the person who tends them. In its nature it is not a clandestine, but an overt act of ownership; not made up of.distinct trespasses, but amounting to occupation.

But it was argued, that, although it may be true, that the making of turpentine constitutes possession, when carried on to a considerable extent and with certainty visible to the owner, yet that, here, the trees were too few and the place too much out of the way to authorize a fair inference, that the owner knew thereof; and, therefore, that her possession cannot b.e held to have been terminated. We admit there may be cases, in which the possession may be of so minute a part of the disputed land, as not to amount to an ouster of the owner: being regarded, rather, as an inadvertent encroachment without a claim of right, or as permissive and not adverse. But in such cases the conclusion does not arise from the supposition, that the owner was actually ignorant of the fact of the possession or of its extent, but, as Avas mentioned ha Green v Harman, that the other party did not intend to *315usurp a possession beyond the boundaries, to which he had a good title. In holding that making turpentine constitutes possession, we necessarily hold, that it is an occupation, which by its nature is sufficiently notorious, to afford notice to an owner of ordinary attention to his affairs. If, therefore, the extent of the wrong-doer’s possession be so limited — for example, here, the number of trees so few — as to afford a fair presumption, that the party mistook his boundaries, or did not intend to set up a claim within the deed of the other party; it would be a proper ground for saying, that he had not the possession or that it was not adverse. But in the case before us there can be no doubt, that the defendant did intend to take possession and to assert a title to the extent of his own deed. Those who went before him actually tended the trees six years before his purchase. It does not appear that they or he knew that Miss Hines had a title to the land; and, as soon as he purchased, he commenced that use of the land, from which he would derive the most profit. His purpose, therefore, was to enter into and claim the whole, as must be assumed upon the same principle, on which the Courts hold, that a possession of a part of ihe land disputed is the possession of the whole of it. We do not say, if a person designs and by contrivance is able to conceal from the owner this occupation of a minute parcel, for the purpose of defeating the better title by a clandestine occupation, that it might not make a case of fraud, which should not be allowed to succeed. But, if it be so, the intent must be found by the jury; and no such point was made to the jury upon this trial. This case is, that every tree on the land, that was fit for the purpose, was boxed and tended for a crop of turpentine six or seven years, by those, who had deeds which covered the land, and who claimed it under those deeds, and had no notice of an adverse claim, until near the seventh year of their possession. They went as far as they could in taking possession, unless by living on the land or enclosing it for a grain crop.

*316It was further contended that the entry of Mr. Hines re-ves<'e(^ the possession of his daughter, so as to enable her to bring trespass, or to convey to the pláintiff, so that he could gue> jt js not dotted that the entry of the owner upon a trespasser will enable the former to maintain trespass. But it is not merely going on the land in the possession of another, that will have that effect. It must be an entry for the purpose of taking possession, which may be evinced by acts of ownership on the land, as ploughing it, or the like, Butcher v Butcher, 7 Barn. & Cress. 399, or by a formal declaration of the intention accompanying the entry. 2 Blac. Com. 312. 3 Blac. Com. 176. It might, perhaps, be questioned, whether Mr. Hines’ entry was of that character, as he merely warned the defendant, that, if he continued there, he would be sued; which might have been in ejectment perhaps, and not in trespass. But admit that Miss Hines might have brought trespass, or that her deed, if it had been made on the land, would have been operative, Carson v Burnett, 1 Dev. & Bat. 554, yet it does not follow, that this deed, not executed on the land, is valid, and, therefore, that the plaintiff can have this action. We have already said, that we hold the defendant to have been in possession, when Mr. Hines went on the land. The jury have found, that the defendant did not abandon that possession, but continued there, while Hines was there and after he went away, tending the trees, as before, through that season. That was, of course, until and after the execution of the deed to the plaintiff, which was on the first day of September, 1840. At the date of the deed, therefore, the defendant had the same possession he had all along had; which was adverse to Miss Hines and prevented her from assigning her right of entry. His Honor stated to the jury, that such would be the law, even if they should think the defendant was not in person on the laud, at the particular juncture of the execution of the deed. That was going further than was necessary in the case, since it was for the plaintiff to shew, that there was the hiatus in the defendant’s possession, which both *317pre-existed and followed, the execution of the deed, and he gave no evidence on the point. Therefore, if there were er- ° r 3 ror in that respect, it ought not to prejudice the defendant. But we concur in the opinion as expressed. For the possessor of a house or field does not lose his possession by merely going out of them, without any intention of abandonment, but animo reveriendi — no other person entering into possession with a claim to hold it.

The Court therefore approves the instructions to the jury and affirms the judgment.

Per Cuejam, Judgment affirmed.