that an owner intending to possess and cultivate it would have done. In the following spring it was cropped, and from that on it was cultivated until the crop was taken off, when fall ploughing and manuring were again done, and this has gone on continuously ever since. In the years 1905 and 1906 buildings were erected, and in the latter year the plaintiff went to live and has ever since lived there. Her possession has been all along open, obvious, exclusive, and continuous. Until 1906 everything was done upon the land that an owner not residing on it would, do in reaping the full benefit of it, and since the spring of that year everything that an owner in actual, constant occupation would do. All this is well proved by the witnesses, Doughty, Whaley and Newman, as well as by the plaintiff and her husband.

I think this is a fair statement as a result of the evidence. The learned trial Judge then proceeds: "I cannot think that the logical result of the reasoning in any of the decided cases can be that there can be no possession which will ripen into a right to the land, unless the possessor also lives upon it, and if it were I would be quite unable to follow it to that extent in this case. Here, there was the plainest evidence of wrongful possession in the fencing in of the land in question as part and parcel. of the plaintiff's land alone calling for action on the owner's part if he desired to save his rights,-action in removing the fences, or in the Courts of Justice; and in addition to that there was the continuous use by the plaintiff for her own benefit for upwards of ten years before any such action was taken, and so the rights of the owner became barred by the Statute."

It was strongly urged that what was done by or on behalf of the plaintiff in respect of fencing and occupation of the lots did not bring the case within the purview of the Statute so as to give her a title, because the work was done by her servant, and she did not personally reside upon the land until some five or six years after the property was fenced. He further urged that the deeds to the plaintiff of the adjoining lots not having been given until February, 1902, the possession of the adjoining lots was in the owner of them, and the lot in question could not be considered as enclosed with the plaintiff's until she received a deed, and that entry by the defendant, after he had received a paper

title, vested the property in him, the Statute not having run a sufficient length of time from the date of the deed of the adjoining lots to the plaintiff and the entry by the defendant.

The plain answer to that, I think, is this, it is wholly immaterial whether the plaintiff had received a deed of the adjoining lots or not; she had bargained for them and fenced them in in September, 1901, and her possession of them and of the land in question was continuous and exclusive from the date of fencing.

As to the entry, such as it was, under the law as it now stands, could have no effect. Since the Act, sec. 8, no person shall be deemed to have been in possession of any land, within the meaning of the Act, merely by reason of having made an entry thereof. "Under the old law a merely formal entry by the person entitled was sufficient to vest the possession in him. Co. Li. Litt. 253b. Though under 4 and 5 Anne ch. 16, sec. 16, such an entry or claim was not effectual to avoid the Statute 21 Jac. 1, ch. 16, unless an action was commenced within a year and prosecuted with effect. The result is that an entry, to vest the possession in a person entering and prevent the bar of the Statute, must be effective as opposed to merely formal. The making an entry amounts to nothing unless something is done to divest the possession out of the tenant and revest it in fact in the lord:' Doe v. Coombs (1850), 9 C. B. p. 718. And it must be made animo possidendi: Solling v. Broughton (1893).

(Reference to Co. Litt. 253b; 4 & 5 Anne ch. 16, sec. 16; 21 Jac. 1. ch. 16; Doe v. Coombes, 9 C. B. 718; Solling v. Broughton (1893), A. C. 556; Worssam v. Vandenbrande, 17 W. R. 53.)

The present case differs from that quoted in several particulars. The land had been continuously used and occupied down to the present time by the plaintiff. The plaintiff was, in fact, residing upon the land at the time the alleged entry was made, that is, upon the block of which the lands in question form a part, being one enclosure for the whole.

Also, here the ten years had elapsed after the enclosure, and before the entry, and the entry was such as I think expressly falls within section 8 of the Act.

There remains, therefore, for consideration only the question as to whether or not a piece of land entirely enclosed with other lands by the plaintiff, used and occupied by her continuously for over ten years, her possession all along being "open, obvious, exclusive and continuous" does not come within the Statute, simply because in the earlier four or five years she did not live upon the land: that is, was personally absent during the winter, although the land remained still enclosed by the fence and was used and occupied as an owner would in such a case.

The authority chiefly relied on by counsel for the defendant was Coffin v. North American Land Co., 21 O. R. 80. In several respects the facts in that case are similar to the facts in the present case, but in others they widely. differ. In that case, during the statutory period the true owners entered upon the land, pulled down the old and built a new fence. Here, as already pointed out, entry was not made until after ten years had elapsed from the time. the lots were enclosed in September, 1901. Further, the plaintiff in the Coffin Case entered into an agreement after a threat that he would be evicted unless he acknowledged himself to be a tenant and promised to give up possession when required, and he did give up possession and although living on the adjoining land, he made no claim of any kind until five years after he had given up possession.

The points of difference are sufficient, I think, to distinguish the Coffin Case from the present. But I desire to refer to some observations made in the judgment of the Coffin Case to which I cannot accede. It is said there that "The plaintiff cropped the land in question during the summer. During the winter he did nothing to it but draw some loads of manure upon it. . . . During the summer months and during the months when he was sowing the land and reaping his crop, his possession was clearly sufficient beyond question, but during the rest of the year his possession was not actual nor constant, nor visible. During each winter he says that he drew some manure upon the place and in the spring he spread. Excepting for this he withdrew absolutely to his own lot, which adjoined but was separated by a fence from that of which he claims the possession," (differing in this respect also from the present) "The winter months must be separated from the summer and we must look at the acts of possession done during those

winter months by themselves. Doing this, I think the acts done in the winter did not constitute an occupation of the property to the exclusion of the right of a true owner, but were mere acts of trespass, covering necessarily but a very short portion of the winter, and that the possession must be taken to have been vacant for the remainder of it. The right of the true owner would attach upon each occasion when the possession became thus vacant, and the operation of the Statute of Limitations would cease until actual possession was taken in the spring again by the plaintiff;" citing Agency Co. v. Short, 13 App. Cas. 793.

To this proposition of law, I cannot assent. In the case cited, the trial Judge had charged the jury that when any person went into possession of another person's land and exercised dominion over it with the intention of claiming it, and the Statute of Limitations thereupon began to run as against the owner of the land, such running was never stopped, notwithstanding that the intruder entirely abandoned the land long before the expiration of twenty years from his first entry, and no other person took possession of such land, and that the right of the true owner of the land would not again arise without an entry by such true owner with the intention of repossessing himself of such land. The jury were also told that at the expiration of twenty years after such taking possession of the land as against the true owner, his right of action was defeated, notwithstanding that there may not have been twenty years' possession as against him.

Lord Macnaghten, who delivered the judgment of the Privy Council, after referring to the charge, and to the origin of the doctrine, said: "Their Lordships are unable to concur in this view. They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law which requires him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the

purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant."

This final statement of the law was applicable to the Coffin Case, an the finding that there was there an abandon-` nient of the premises for some 4 or 5 years. In the present case there was no abandonment, unless as Street, J., argues "the fact that the land lay idle during the winter."

It is impossible, I think, to treat what took place in the present case as abandonment. The land was entirely enclosed. It was cultivated and cropped every year. It is begging the question to say, that because the land was not used in the winter time, when it could not be used for any useful purpose, therefore, there was an abandonment. Surely abandonment is a matter of intention, and the cultivation and cropping from year to year shews that there never was any intention of abandonment, and the case cited with respect to that point had, I think, no application.

(Reference to McIntyre v. Thompson, 1 0. L. R. 163, 167; Sedden v. Smith, 36 L. T. R. 168; Harris v. Mudie, 7 A. R. 414, 421; Jackson ex dem. Hardenbury v. Shoomaker, 2 Johns (N. Y.), 230; Worssam v. Vandenbrande, 17 W. R. 53.)

The case of Worssam v. Vandenbrande, 17 W. R. 53, is, I think, in point. The Court on the finding of the jury regarded the fence as wholly destroyed, and declared in so many words if this had continued the title of the defendants would have been good. In the present case, not only, did the fence continue, but the land was cultivated each year.

I cannot assent to the general statement of Street, J., in the Coffin Case, that the winter months must be separated from the summer months, and that we must look at the acts of possession during those months by themselves, nor the view there expressed that the acts done in the winter months did not constitute an occupation of the property to the exclusion of the right of the true owner would attach, and that the operation of the Statute of Limitations would cease until actual possession was taken in the following spring. No doubt, the statute ceases to run if the adverse possessor quits the land and leaves the possession vacant, as there is no