Joseph Story

“ The erection of a fence, is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts, which are equally evincive of such an intention of asserting such ownership and possession: such as entering upon land and making improvements thereon; raising a crop of corn; felling and selling the trees thereon, &c.; under colour of title.
An entry into possession of a tract of land, under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in any adverse possession ”

“ If the possession intended was that of M'Cammon, it is open to the objection already stated, that the boundaries of his claim or title are not ascertained, so as to enable the court to give the instruction as matter of law. In truth, the instruction asked seems to have proceeded upon a ground perfectly untenable in itself; and that is, that as to third persons, who are in under title or colour of title, their possession is to be bounded and limited by the nature and extent and origin of the distinct titles of their adversary ”

“ It is upon the ground of this same distinction, that general reputation is admitted in England in cases of disputed boundaries between parishes and manors: because the right affects many persons, and is of public notoriety and interest as to all the inhabitants of the parish or manor. (b) And yet, in England, it has been held, at nisi prius, (though the point has not been settled by the highest authority) that general reputation as to the boundaries between private estates is not admissible evidence. ”

“ If with these principles in view we examine the instruction asked of the court, it will be found open to much objection. It assumes certain facts as its basis, which were not in evidence; or, if in evidence, they were for the decision of the jury. The court were asked to instruct the jury, 'that the settlement of M'Cammon within the two thousand acres tract, did not give a claim to a possession within the one thousand acres tract,' without ascertaining whether the claim or title of M'Cammon extended into the latter or not. ”

“ To instruct the jury that the settlement of William Pearl at or near the II, as designated on the plat in 1800, outside of the patents under which the demandants claim, does not give any defence or limitation to the demandants' right to recover, though he settled within what he supposed to be Remey's claim, unless they find that Remey's survey, as actually made, and on which his patent issued, includes said settlement and the patent under which demandants claim. 3d. ”

“ The tenants claimed title to the premises under a patent from the commonwealth of Virginia, to Jacob Remey, of twenty thousand acres of land, lying on the waters of Rockcastle, dated on the 15th of July 1789. Remey, on the 20th of November 1799, conveyed thirteen thousand four hundred acres of the same tract to William Edwards: and Edwards, on the 26th of December 1799, conveyed seven thousand acres of the same tract, by metes and bounds, to William Pearl, the tenant, under whom all the other tenants claim. ”

“ In cases of prescriptive rights and customs, and other claims of a public nature, tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having a common interest. ”

“ That he had followed the marked line, running from the mouth of Raccoon creek to a corner, said to be Ballard Smith's corner; and that he found trees marked, as corner trees, corresponding with the call of Smith and Robert Rutherford's surveys. The plaintiff them read to him the surveys of Robert Rutherford, Ballard Smith, and asked him if the old line did not correspond to these surveys: he answered it did, and that date of Robert Rutherford's survey corresponded with the first block, and that of Smith's to that of the second shown by M'Neal. ”

“ The demandants then called Lot Pitman, who stated that from about the place spoken of by Crook and Smith, and shown to them as the place of beginning for Remey and Thompson's survey, and where they saw a white oak corner, he had run a west line the distance called for in Thompson's patent, at the end of which he found corner trees standing, marked to correspond with Thompson's patent ”

“ The defendant, to prove the boundaries of the demandants, as laid down on the plat and claimed by them, give in evidence the original plats and certificates of surveys of James Kincaid's two thousand and one thousand acres surveys, and then examined demandants' witness, M'Neal, the same person first introduced by them to prove their boundary, who stated that the water courses, as found on the ground, did not correspond with those represented in said plats ”

“ We say in general, because there are exceptions; but they are of a peculiar nature, not applicable to the circumstances of the present case: as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made ”

“ That he recollected it was marked on the north and west sides, but could not say whether it was marked on the south side or not; that the white oak was of a common cabin log, and that near to the tree lay the trunk of a white oak not quite so large; that the top of the log was burnt so that no chops appeared on it, but that they turned it over, and found the under side plainly and anciently marked with three chops, apparently done with the same tool that the standing tree had been marked with ”