Page:Federal Reporter, 1st Series, Volume 2.djvu/449

 442 FEDERAL REFOBTEB. �since it was built he bas exercised control of ail within hîs enclosure. �The defendant has been, since February, 1872, in the open, peaceable, notorious, exclusive possession of ail within the fence, and elaiming title and exclusive ownership of ail within his hedge, �This action was begun in November, 1877, so that the period of five years, during which defendant's occupation contmued, had fuUy passed when the complaint was filed and the sum- mons was issued. The plaintiff endeavors to take this case out of the statute, upon the ground that Leete took possession under his deed, describing this land as the south-east quar- ter of the southwest quarter, and, upon his own statement, did not intend to mark off or claim more land than his deed called for. �A possession so taken, it is argued, can only be adverse up to the true boundary line, because, as to anything over that, the occupation is by mistake and not under claim of right. This position will not bear examination, for every act of the defendant in entering and occupying this land was an assertion of title in himself. His actual, substantial enclos- ure of it was, both by the statute of Nevada and the general principles of law, decisive proof of his adverse possession. Comp. Laws Nev. §§ 1024, 1026; Angel on Lim. § 396; Ellicott Y. Pearl, 10 Pet. 412, 442. �The fence, together with the planting of the hedge and the shade trees, are acts evincing "an intention of asserting owner- ship and possession," and it is "the intention which guides the entry and fixes its oharacter." Ewing v. Burnett, 11 Pet. 41- 53 ; Bradstreet v. Huntington, 5 Pet. 410 ; Ellicott v. Pearl, supra. �Had it appeared by any manifestations on defendant's part, at the time of his entry, that his claim of title was conditional upon the line marked by him being the true line, there would be some support for the plaintiff's position. But the evidence is clear that he marked out the boundary, not as a doubtful one, but as the true one, and ail his actions agree with this ����