But, if this were not so, and we resort to considerations of their reason and spirit, the same result is reached. The statutes of limitations are statutes of repose, and their purpose should not be impaired by injecting into them by judicial construction elements that are not there."

Sec. 31. Title by-Good faith-Tacking possessions. In Nebraska it is held that the title to land becomes complete in the adverse occupant when he and his grantors have main, tained an actual, continued, notorious, and adverse possession thereof, claiming title to the same against all persons, for ten years. It is not essential that the claim of right or title to the land by the adverse occupant should be a valid legal claim, in order that the statute may run in his favor. The facts of the continuous possession, its adverse character, and the claim of the occupant to be the owner of the premises, are the esssential things to vest a title to real estate by occupancy thereof. If the adverse possession of the occupant is a continuation of the possession of a prior adverse possessor, claiming title, and such occupant claims title from such prior possession, then the possession of the occupant may be tacked to that of such prior possessor. Lantry v. Wolff, 49 Neb. 874 (68 N. W. Rep. 494). While it is true that a void deed or one given without right or title by the grantor, or even a tax deed void on its face, may be sufficient to give color of title, though such a rule has no application to one who actually knows that he has no claim or title or right to a title, adverse possession must be in good faith. Litchfield v. Sewell, 97 Ia. 274 (66 N. W. Rep. 104). Citing, Jones v. Hockman, 12 Ia. 101; Close v. Samm, 27 Ia. 503; Smith v. Young, 89 Ia. 338 (56 N. W. Rep. 506); Snell v. Mechan, 80 Ia. 53 (45 N. W. Rep. 398). Continuity is an indispensable element of an adverse possession. If several enter at different times, and there is not a privity of estate between them, such as ancestor and heir, vendor and vendee, landlord and tenant, the several possessions cannot be tacked, so as to make continuity of possession on which the statute of limitations will operate; but if there is such privity, for the purpose of completing the bar, such possessions may be tacked and treated as one continuous holding. Carter v. Chevalier, 108 Ala. 563 (19 So. Rep. 798). The successive possessions

of several distinct occupants of land between whom no privity exists, cannot be tacked or united to make up the requisite statutory period. While it is not necessary in order to create such privity as will enable the subsequent occupant to tack his possession to that of a prior occupant that there should be a conveyance in writing, and although such prior possession may be transferred by parol, yet it must clearly appear that the particular premises were in fact embraced in the transfer in whatever form it may have been made. Upon this point no presumption can be indulged. Ryan v. Schwartz, 94 Wis. 403 (69 N. W. Rep. 178). The possession of one who holds under another cannot be tacked to a subsequent adverse holding. Everett v. Newton, 118 N. C. 919 (23 S. E. Rep. 961) In Tennessee it is held that where there is no devise or conveyance there is no such privity of estate as will permit a widow to tack her possession to that of her deceased husband for the purpose of making title by adverse possession. East Tenn. Iron & C. Co. v. Walton, Tenn. (35 S. W. Rep. 459). Where there was no resistance to partition proceedings one who purchased at a sale thereunder may tack his possession to that of the previous owners. Clark v. Bundy, 29 Ore. 190 (44 Pac. Rep. 282).

Sec. 32. Title by-Payment of taxes-Time necessary. The Illinois statute, Hurd's Rev. Stat. 1895, ch. 83, § 6, provides: "Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her title." Under this statute it is held that a deed conveying a right of way from one railroad to another is a good color of title under which the latter road may acquire title as against the landThe payment of taxes on its right of way by the railroad company is not overcome by the fact that the owner of the paramount title in payment of taxes upon the land through which the road runs, obtained the receipt for the entire body of land, it appearing that he in fact paid no taxes on that por

owner.

tion of the land occupied by the railroad company as a right of way. St. Louis, I. & E. R. Co. v. Warfel, 163 Ill. 641 (45 N. E. Rep. 169). In North Carolina adverse possession of land for twenty years confers title. Shaffer v. Bledsoe, 118 N. C. 279 (23 S. E. Rep. 1000). In Arkansas peaceable adverse possession of land under claim of title for seven years confers title. Barnett v. Meacham, 62 Ark. 313 (35 S. W. Rep. 533). Twenty years adverse possession is necessary to defeat the true owner of the title, the record of which has been destroyed by fire. Quinn v. Perkins, 159 Ill. 572 (43 N. E. Rep. 759).

Sec. 33. Title by-Easements-Burial lots-Municipalities. A wrongful entry upon the land of another under a claim of right, inconsistent with the title of the true owner, with continued possession and the exercise of acts of ownership hostile to the rights of the owner, but without any pretense of a paper title, may ripen into title by prescription. This rule applies to an easement in real property, and where the claimant needs the use of the property from time to time and so uses it, this is a sufficiently continuous use to be adverse, although it is not constant. One may acquire an easement in a water course by adverse use during certain months of the year. Swan v. Munch, 65 Minn. 500 (67 N. W. Rep. 1022; 60 Am. St. Rep. 491; 35 L. R. A. 743). Where there is a burying ground situated within a larger tract of land, possession of a few square feet of land within such burial ground, for the statutory period, by a grave upon it and a fence around it, will create title by prescription to so much of the land as is enclosed within such fence, but not to the larger tract of land in which the burial ground is situated. Zirngibl v. Calumet & C. C. & D. Co., 157 Ill. 430 (42 N. E. Rep. 431). A municipal corporation in its proprietary capacity no less than an individual may acquire title by adverse possession. Stephens v. Murray, 132 Mo. 468 (34 S. W. Rep. 56).

Sec. 34. Color of title-As to what is-Necessity of. Color of title is defined "to be that which in appearance is title but which in reality is not title." It is said "to be immaterial whether the title be valid or not provided the

entry and claim be bona fide under that title." Kopp v. Herman, 82 Md. 339 (33 Atl. Rep. 646). It is not necessary for a deed to be recorded in order to constitute color of title. Utley v. Wilmington & W. R. Co., 119 N. C. 720 (25 S. E. Rep. 1021). A void deed may be color of title, Trustees of Zion Church v. Hilken, 84 Md. 170 (35 Atl. Rep. 9); Twohig v. Leamer, 48 Neb. 247 (67 N. W. Rep. 152); Perry v. Lawson, 112 Ala. 480 (20 So. Rep. 611); but possession must be taken under it and there must be claim of ownership, National Bank v. Baker Hill Iron Co., 108 Ala. 635 (19 So. Rep. 47). A sheriff's deed based upon an execution, the return of which described the land, gave the purchaser's name, and showed that he paid the purchase price, is held to be such color of title as by adverse possession will ripen into a perfect title. Neal v. Nelson, 117 N. C. 393 (23 S. E. Rep. 428; 53 Am. St. Rep. 590). An instrument which can be used as color of title must be one which has a grantor and a grantee and purports on its face to convey the legal title. Neither a certificate of purchase at a tax sale nor a tax deed executed to a firm is sufficient. Burns v. Edwards, 163 Ill. 494 (45 N. E. Rep. 113). It is held that the possession of a mortgagee under his mortgage, but before foreclosure, is not under color of title. Johnson v. Davidson, 162 Ill. 232 (44 N. E. Rep. 499). In order that a deed may constitute color of title it must contain a description of the real estate. son v. Johnson, 145 Ind. 40 (43 N. E. Rep. 930). An instrument of writing to be effectual as color of title, must purport on its face to convey title to the grantee. It is not necessary that such title when traced back to such source should prove to be apparently legal and valid. Nelson v. Davidson, 160 Ill. 254 (43 N. E. Rep. 361; 52 Am. St. Rep. 338; 31 L. R. A. 325). A mortgagee purchasing at his own foreclosure sale made under a judgment rendered upon notice by publication obtained upon an insufficient affidavit made by him has sufficient color of title to claim under the seven year adverse possession statute of Illinois. Reedy v. Camfield, 159 Ill. 254 (42 N. E. Rep. 833). A claim of right of ownership may rest upon the naked fact, shown by parol, that the party has purchased the land; and a claim of color of title may be shown by any paper purporting to convey the land or the

Wil

right to its possession into the party asserting adverse possession, however and for whatever reason such paper might be lacking in the essentials of a muniment of title, providing the party claims under it in good faith. Goodson v. Brothers, 111 Ala., 589 (20 So. Rep. 443).

Sec. 35. Adverse

An

possession of highway. abutter upon a highway which has been legally established, cannot acquire the right to encroach his fence upon such way by adverse possession, for the reason that he is charged with notice of its width as established and that he has therefore no color of title to support his claim. Rae v. Miller, 99 Ia. 650 (68 N. W. Rep. 899). An abutter upon a highway cannot acquire by prescription an easement in the highway for the construction of sidewalks in front of his property. Ulman v. Charles St. Ave. Co., 83 Md. 130 (34 Atl. Rep. 366).

Sec. 36. Co-tenants-Life tenant and remainderman -Vendor and vendee. Mere possession of the premises, payment of taxes and appropriation of rents and profits by one tenant in common does not constitute adverse possession by him. McMahill v. Torrence, 163 Ill. 277 (45 N. E. Rep. 269). In order for a tenant in common to set the statute of limitations in motion in his favor he must have absolutely denied the title of his cotenants, or by other notorious acts have indicated his intention to claim and hold the estate exclusively. McKneely v. Terry, 61 Ark. 527 (33 S. W. Rep. 953). Citing, 2 Wood Lim. 266, and cases cited; Ricard v. Williams, 7 Wheat. 121; Prescott v. Nevers, 4 Mason 326 (Fed. Cas. No. 11,390); Jackson v. Tibbetts, 9 Cow. 241; Parker v. Proprietors, 3 Metc. (Mass.) 91 (37 Am. Dec. 121); Ang. Lim. 429; McClung v. Ross, 5 Wheat. 116; Todd v. Todd, 117 Ill. 92 (7 N. E. Rep. 583). See also, Sydor v. Palmer, 29 Wis. 226. The possession of a tenant cannot be adverse until after he has openly and explicitly disclaimed any and all holding under his landlord. Nessley v. Ladd, 29 Ore. 354 (45 Pac. Rep. 904). For cases which depend upon particular facts and illustrate what constitutes an ouster or adverse possession as between tenants in common, see La Fountain v. Dee, 110 Mich. 317 (68 N. W. Rep. 220). In Illinois it is held