pursuance to an absolute gift, he claiming title in himself, his possession is adverse to the donor, and may ripen into title. Spradlin v. Spradlin et al., Ky. (18 S. W. Rep. 14); Thompson v. Thompson et al., 93 Ky. 435 (20 S. W. Rep. 373).

Sec. 39.

Occupancy under express trust. To defeat an open, notorious, exclusive, and unquestioned possession of lands for fifty years, on the ground that the party in possession held as the trustee of an express trust, it must clearly appear that the possession was taken and held while the trust was subsisting. When the court is asked to presume such conditions, they must not only be deducible from some of the facts, but must be equally consistent with others. Such presumption will not be made where a presumption is also raised, consistent with all known facts, that the trust has been extinguished. Starkey v. Fox,

211).

N. J. Eq. (29 Atl. Rep.

Sec. 40. Adverse possession as respects boundaries. The intent to claim title up to a mistaken line is an indispensable element of adverse holding. Watrous v. Morrison, 33 Fla. 261 (14 So. Rep. 805; 39 Am. St. Rep. 139). Possession by mistake, without knowledge of the true boundary line or intention to claim adversely, is not adverse. Adkins et al., v. Tomlinson, 121 Mo. 487 (26 S. W. Rep. 573). Where one takes and holds possession up to a fence, and claims to be the owner up to it, his possession will be adverse, though he may believe the fence to be on the true line, when in point of fact it is not on the true line. Battner v. Baker, 108 Mo. 311 (18 S. W. Rep. 911; 32 Am. St. Rep. 606); Dyer v. Eldridge, 136 Ind. 654 (36 N. E. Rep. 522). But such possession must be under a claim of ownership. McWilliams v. Samuel, Mo. (27 S. W. Rep. 550); Preble et al. v. Maine Central R. Co., 85 Me. 260 (27 Atl. Rep. 149; 35 Am. St. Rep. 366; 21 L. R. A. 829). To constitute adverse possession as between conterminous owners there must be an actual possession with an intention to hold adversely. Ayers v. Reidel, 84 Wis. 276 (54 N. W. Rep. 588). Citing, Dhein v. Bouscher, 83 Wis. 316 (53 N. W.

Rep. 554); Schwallback v. Railway Co., 69 Wis. 298 (34 N. W. Rep. 128); Hacker v. Horlemus, 74 Wis. 21 (41 N. W. Rep. 965); Harvey v. Tyler, 2 Wall. 349. Probst v. Trustees, 129 U. S. 191, 192, (9 Sup. Ct. Rep. 263).

Sec. 41. Construction of statutes pertaining to adverse possession. Under the Michigan statute, How. Stat., § 8700, the right of the heir to recover the estate of the deceased accrues at the death of the ancestor, unless there be an intervening estate, and it is held that the occupancy of the lands of the deceased wife by her husband is adverse to the heirs. Pattison v. Dryer et al., 98 Mich. 564 (57 N. W. Rep. 814). Texas Rev. Stat., Art. 3196, provides that one who holds an adverse possession of land for ten years "shall be held to have full title precluding all claims." Under this statute it is held that a bona fide purchaser from the holder of the record title is precluded by the statute from asserting any rights. against one who has acquired title by adverse possession, even though at the time of the purchase of the record title the land is vacant and there is no trace of the prior adverse possession. Mac Gregor v. Thompson et al., Tex. Civ. App. (26 S. W. Rep. 649). The words "under claim of title," as used in a statute defining adverse possession, do not require good faith on the part of the person making the entry; it is sufficient claim of title that the entry of the disseisor is hostile to all the world. Chicago & N. W. Ry. Co. et al. v. Groh et al., 85 Wis. 641 (55 N. W. Rep. 714). In construing Tex. Rev. Stat. art. 3193 providing that five years adverse possession "under a deed or deeds duly registered," with payment of taxes, shall bar an action for recovery, it is held that the statute does not apply where the deed under which one claims is void on its face. Schleicher et al. v. Gatlin, 85 Tex. 270 (20 S. W. Rep. 120). But the statute does protect one who claims under a deed of one without title, if not void on its face. Harris et al. v. Wells et al., 85 Tex. 312 (20 S. W. Rep. 68). To satisfy the statute there must be an actual payment of taxes upon the lands claimed; the payment of taxes assessed on other land, though it was the intention of the payor to pay the taxes on the land claimed, is insufficient. Dutton v. Thompson, 85 Tex. 115 (19 S. W.

Rep. 1026). Under Tex. Rev. Stat. art. 3195 more than 160 acres of land cannot be acquired through naked adverse possession unconnected with any deed or written memorandum of title. Hardy et al. v. Dunlap, Tex. Civ. Ap. (26 S. W. Rep. 852).

In construing Ill. Rev. Stat. 1874, § 216 of the revenue law, which confers title upon one who, having color of title thereto, for seven years pays taxes on "vacant and unoccupied land," it is held that entries upon land, which are merely tem. porary, and made without claim of right, or with the intention of excluding others therefrom, such as camping thereon, or leaving a chattel thereon, do not constitute actual possession, so as to change the character of the vacant land to that of land actually possessed or occupied. Walker v. Converse, 148 Ill. 622 (36 N. E. Rep. 202). Citing, Drake v. Ogden, 128 Ill. 603 (21 N. E. Rep. 511); Truesdale v. Ford, 37 Ill. 210. The taxes must be paid by or on behalf of the person having the color of title. Timmons v. Kidwell, 149 Ill. 507 (36 N. E. Rep. 974); Timmons et al v. Kidwell et al., 138 Ill. 13 (27 N. E. Rep. 756). It is necessary for the holder of the color of title to obtain possession of the land before he can assert the bar of the statute. Gage v. Smith et al., 142 Ill. 191 (31 N. E. Rep. 430). Application of this statute to parSholl v. German Coal Co., 139 Ill. 21 (28 N. Payment of taxes without color of title conDurfee et al. v. Peoria, D. & E. Ry. Co., 140 Ill. 435 (30 N. E. Rep. 686).

ticular facts. E. Rep. 748). fers no right.

Under Cal. Code Civ. Proc. § 325, which requires that one seeking to acquire title to land by five years adverse possession must have paid all the taxes during that period, it is held that, the adverse claimant having paid the tax for that number of years, it was immaterial that the original owner had also paid some taxes on the land during that time. Cavanaugh v. Jackson, 99 Cal. 672 (34 Pac. Rep. 509). Cal. Code Civ. Proc. § 325, which provides that one cannot establish title by adverse possession without showing occupancy of the land for five years and payment of all taxes during that time, applies only to a case in which there is a contest between the holder of a legal title and a party who claims he has been in possession for five years" adversely to such legal title."

Shannahan v. Tomlinson et al., 103 Cal. 89 (36 Pac. Rep. 1009). The expression "proper title" in section 2923 Mills' Ann. Colo. Stats. 1891, (Gen. Stat. § 2186) should be read "paper title." Knight v. Lawrence, 19 Colo. 425 (36 Pac. Rep. 242). In order for one to claim the benefit of five years adverse possession under Cal. Code Civ. Proc. § 325 it must appear that he has paid all the taxes which have been levied and assessed upon the land during that period. McDonald v. Drew et al., 97 Cal. 266 (32 Pac. Rep. 178).

Ga. Code, § 2681 applied-constructive possession of one holding under paper title. Furgeson v. Bagley, Ga. (20 S. E. Rep. 241). La. Civ. Code, § 3436 applied-title by thirty years adverse possession. Clemens v. Meyer et al., 44 La. An. 390 (10 So. Rep. 797). Mass. Stat. 1861, ch. 100 construed-adverse possession of lands of a railroad. Mancy v. Providence & W. R. Co., 161 Mass. 283 (37 N. E. Rep. 164). N. Y. Code Civ. Proc. §§ 369, 370 applied-title by adverse possession. Northport R. E. & I. Co. v. Hendrickson, 139 N. Y. 440 (34 N. E. Rep. 1057). N. C. Code, § 141 applied-title by adverse possession for seven years under color of title. Amis et al. v. Stephens et al., 111 N. C. 172 (16 S. E. Rep. 17). Mill. & V. Tenn. Code, §§ 3459-3461 construed-seven years adverse possession gives title. Hopson et ux. v. Fowlkes et al., 92 Tenn. 697 (23 S. W. Rep. 55; 36 Am. St. Rep. 120); McLemore v. Durivage, 92 Tenn. 482 (22 S. W. Rep. 207). Under Texas Act 1891, p. 76, possession by the lessee of one claiming adverse possession is not sufficient. Kent v. Cecil, Tex. (25 S. W. Rep. 715).

Sec. 42. Public rights as affected by adverse possession. As against a municipal right acquired, in trust for the public, by dedication for streets, neither non-user, nor the rule of prescription, nor the statute of limitation, can be invoked. Ham et al. v. Common Council of Dadeville, Ala.

(14 So. Rep. 9); City of St. Louis v. Mo. Pac. R. Co., 114 Mo. 13 (21 S. W. Rep. 202). The possession of a railroad company entering under such a right given in its charter, no other claim of right appearing, and there being no exclusion of the public use, is consistent with, and not hostile to, the public right, and is not adverse. But where the charter does not

authorize the construction of buildings on the highway, the occupation of parts of the highway with such buildings in exclusion of the public use may be averse to the public right, and may ripen into title by adverse possession. Village of Wayzata v. Great Northern R. Co., 50 Minn. 438 (52 N. W. Rep. 913). A person cannot acquire any right in a legally established highway by adverse user, for the user, as long as it continues, is a nuisance and punishable by fine. Wolfe et al v. Town of Sullivan, 133 Ind. 331 (32 N. E. Rep. 1017).

The possession of a street by owners abutting thereon is presumed to be in subordination to the easement where such owners hold under conveyances recognizing the existence of the street. In re Village of Olean v. Steyner et al., 135 N. Y. 341 (32 N. E. Rep. 9).

In a recent case the supreme court of California say: “Of course, it is well settled that land held by a city in trust for the general public for use as a street, park, or for a public building, cannot be alienated by the city, and the title of the public thereto cannot be lost by a possession adverse to the city. But in case of lands the legal title to which is vested in the city, and which may be alienated by it, the rule just stated in relation to land dedicated to the public use does not apply. As to land which is the subject of alienation, we are clearly of the opinion that the title of the city thereto may be lost by the adverse possession of another for the requisite period of time; and in regard to public lands of this latter character, such as house lots, we see no reason why the statute of limitations should not apply in favor of an adverse possessor, precisely the same as if such land had been acquired by the city by purchase, and for purposes of sale, or for any other use not strictly municipal." Ames et ux. v. City of San Diego, 101 Cal. 390 (36 Pac. Rep. 1005). In Nebraska ten years adverse possession of a portion of a street creates the title in the occupant. Lewis et al. v. Baker, 39 Neb. 636 (58 N. W. Rep. 126).

A city or town has no alienable interest in the public streets thereof, but holds them in trust for its citizens and the public generally; and neither its acquiescence in an obstruction or private use of a street by a citizen, or laches in resorting to legal remedies to remove it, nor the statute of limita