pose, such as piling boards and lumber, is not an ouster.' And while we have the general language, quoted above, stating that the erection of a permanent structure "would be evidence of an ouster," we are at a loss to know what degree of importance should be attached to such evidence. It may be that the fact of the erection, out of his own means, of a house or other permanent structure, would be a material circumstance to be considered in connection with other facts, for the purpose of determining whether the cotenant making the erection was holding the premises for himself alone, or for the other cotenants as well as for himself. But as long as it is conceded that each cotenant may enter upon, and enjoy the common property, we shall not be inclined to admit that evidence of the erection of a permanent structure can be sufficient to justify a finding of ouster. It may be that the lands cannot be enjoyed as each tenant is entitled to enjoy them, without making extensive and permanent improvements. Why should the cotenant, willing to be at the expense of such improvements, be compelled to desist from making them, and required to leave his lands in a condition in which he cannot use them advantageously to himself? for he is necessarily so compelled and required, if his improvements are to be treated as hostile acts, subjecting him to the penalties visited upon a cotenant found guilty of an ouster of his companion in in

terest.

2241. Unequivocal Acts essential to Ouster.-The inference of law in regard to possession of a tract of land held by any person, is that such possession is by virtue of the title which such person happens to have. If he be a part owner, the presumption of law must necessarily be that he enters as such part owner, intending, while enforcing his own rights, to respect those of his cotenants. The fact of his possession is, of itself, in harmony with his title. Until, by some act of an unequivocal character, he indicates that his possession is no longer the possession of his cotenants as well as of himself, he is not liable to be proceeded against for having committed an ouster, nor can he claim to have acquired any rights against

Keay v. Goodwin, 16 Mass. 1.

them based upon their disseizin.' "In the cases in which one tenant in common has successfully asserted the statute against his cotenants, there have been unequivocal acts, such as resistance of the right of entry; confession of disseizin; selling, leasing, or improving the premises, or part of them."2

242. Ouster, from what inferred.-From what we have said in regard to the necessity of the existence of some act of an unequivocal nature, in order to impart to the possession of a cotenant such a hostile character as to convert it into an ouster, it must not be assumed that direct evidence of such act must always be produced. When an issue arises in regard to an alleged ouster, certain acts and circumstances may be put in evidence, which, though they do not establish a direct keeping or turning out, nor an express denial of title, yet tend to create " a natural presumption of an ouster," and to force upon the minds of the jury the conviction that an actual ouster must have taken place. "If one tenant in common has been in possession a great number of years, without any accounting to his fellow-commoners, this is proper evidence, from which the jury may infer an adverse possession."3 In some instances, such possession has been regarded as raising a presumption of law which the jury are not at liberty to resist. An exclusive possession under a claim of title for forty years, while the other cotenants resided in the same county and failed to assert any claim to their property, warrants the presumption of an actual ouster." "When one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster though none be proved." "It is necessary, in order to maintain a title by disseizin by one tenant in common against another, to show some act or series of acts to indicate a de

1 Van Bibber v. Frazier, 17 Md. 450; Wass v. Bucknam, 38 Me. 360; Challefoux v. Ducharme, 8 Wis. 287; 4 Wis. 554; Marr v. Gilliam, 1 Cold. 488; Blakeney v. Ferguson, 20 Ark. 547; McClung v. Ross, 5 Wheat. 116.

cisive intent and purpose to occupy the premises to the exclusion and in denial of the right of the other. The facts which will sufficiently prove such ouster and adverse possession will vary according to the different circumstances of parties, and no definite and positive rule can be laid down by which all cases can be governed. It may, however, be safely said that a sole and uninterrupted possession and permanency of the profits by one tenant in common, with the knowledge of the other, continued for a long series of years, without any possession or claim of right and without any perception of profits or demand for them by the cotenant, if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right, will furnish evidence from which a jury may and ought to infer an actual ouster and adverse possession. Such an inference is reasonable and justified under the circumstances, because men do not ordinarily sleep on their rights for so long a period, and a strong presumption arises that actual proof of the original ouster has become lost by lapse of time." The facts of a case, and the law applicable thereto, were thus stated in the Supreme Court of Pennsylvania: "One tenant had died in debt to the others, and apparently insolvent. The surviving owners and their representatives, during nearly forty years, paid the taxes and ground rent; for a suspension of these payments would have lost them the whole estate, comparatively worthless then, but valuable now. They mortgaged the property, and placed their mortgage on record. At different times, they erected and re-erected buildings suitable to their business. They received the profits of the land, smaller probably than its expenses, but large in the aggregate, without accounting or being called to account. When the property has become valuable, certain of the dead man's heirs come forth and recover a proportionate part, without paying a dollar of the expenditures. Considered separately, each of these facts may have been inconclusive; together, they bore powerfully on the result, for if 'improving lands, and receiving the rents, issues, and profits thereof, are in all cases the highest acts of ownership which can be exercised over them, and the exercise of

Lefavour v. Homan, 3 Allen, 355.

these acts strongly marks the possession with exclusiveness and hostility,' the defendant's testimony ought to have given a preponderance to the scale. To tell the jury that perception of profits was insufficient, and that from all the facts in the case they were not bound to presume an ouster, was to fall short of the mark. The facts tending to prove the ouster should have been submitted to the jury for their decision, with the instruction, that if found to be undenied and unexplained, and believed to be true, they would justify the finding of the ouster claimed to have taken place."1

Where the proof established an exclusive possession, a taking of the entire profits, and paying of the taxes, for a period extending beyond the Statute of Limitations, with the acquiescence of the other cotenants, and without any claim of possession or any demand for an accounting of rents and profits, the Court thought that this "evidence had no tendency to prove direct acts of actual ouster. It consisted' merely of facts and circumstances going to show negligence, inattention, remissness, and failure to claim any right or title, or make any demand for an account of the profits-mere acquiescence on the one side, and a continuous and exclusive possession of the whole premises on the other-taking all the profits and paying the taxes for more than twenty-six years, and for a time beyond the full period of the Statute of Limitations, both as a bar to an ejectment and a bar to an action of account. Upon evidence of this kind, it would have been entirely proper for the Court to instruct the jury that they were at liberty to presume-that is, to infer-an actual ouster, if, upon the whole evidence before them, considered together, with the great lapse of time, they should be morally convinced and satisfied that such had been the fact. Such evidence, in such case, may be allowed to overcome the legal presumption in favor of tenancy in common, and it will be deemed sufficient in law to warrant a jury in inferring and presuming an actual ouster and an adverse possession for the statute bar; and the jury is not bound to find, nor should the Court instruct them to find, such actual ouster. The doctrine goes no further than to leave it to the

Keyser v. Evans, 30 Pa. St. 509.

jury, not upon a legal presumption, but upon a natural presumption, passing for what it may be worth with them, and operating upon the minds as it may happen to produce an actual conviction of the fact."1

"The sole enjoyment of property for a great number of years, without claim from another, having right and under no disability to assert it, becomes evidence of a title to such sole enjoyment; and this not because it clearly proves the acquisition of such a right, but because, from the antiquity of the transaction, clear proof cannot well be obtained to ascertain the truth, and public policy forbids a possessor to be disturbed by State claims when the testimony to meet them cannot easily be had." "An exclusive adverse possession of the whole tract of land, or the exclusive receipt of the rents and profits, no demand being made by the other cotenant, or if made refused, and his title denied, may be evidence of a disseizin or actual ouster."3

The most extreme position of which we have any knowledge, which has been assumed in regard to the ouster of one cotenant by another, is that exhibited by the following extract from a recent opinion of the Supreme Court of California: The Court finds that Shepherd, the landlord of the defendants, had been in the actual adverse possession of the demanded premises from the year 1853 to the present time, claiming title adversely to the plaintiffs and all other persons; but that the plaintiffs had made no demand prior to the commencement of the action to be let into the possession, and had made no offer or attempt to take possession. If an ouster can be inferred from these facts, it must rest solely on the ground that Shepherd was in the adverse possession, claiming title adversely to the plaintiffs. It does not appear that the adverse holding and claim of title were open and notorious, nor that the plaintiffs had notice of it. It is therefore unnecessary for us to decide whether, if these facts had appeared, the ouster would have been established, in the absence of a demand by the plaintiffs to be let into the pos

1 Warfielu v. Lindell, 38 Mo. 581.

Thomas v. Garvan, 4 Dev. 223; Cloud v. Webb, Id. 290.

3 Hubbard v. Wood, 1 Sneed, 286.