Page:Federal Reporter, 1st Series, Volume 2.djvu/452

 BROWN V. LEETE. 445 �materially modifies it, for it is said that " possession up to an agreed line ia certainly adverse, and the law would be the same if one of the coterminous proprietors should build a fence as the dividing fence, and should occupy, with a claim manifested by words or acts, that such was the line up. to which his land extended." So in Lincoln v. Edgecombe, 31 Me. 345, the charge held right was, "that if the tenant claimed title to the fence that would, in connection with the fence, amount to a disseizin ; but if it was built by mistake, and if the tenant had not claimed to own beyond the true Une, it was no disseizin." Again, in Major's Heirs v. Rice, 67 Mo. 384, the distinction ia clearly taken between a conditional and unconditional possession and claim of title. Thus, although a line may have been established under a mistake of the real field notes, the statute, says the court, runs : " It is no sort of odds how a line is made so that it be taken and consid- ered the true line by the adjoining proprietors, and the party possessing up to it claims the land, adversely to ail others, as his own. If he maintained hia possession and claim for ten consecutive years the land becomes his, under the stat- ute of limitations, by virtue of adverse possession. But where parties assume a line as the true line, but with the under- standing ail the time that they only claim to the estent of their paper titles, and are to relinquish the fenced'land if it should turn out to be a mistake, a claim thus conditionally made will not support a plea of the statute." �The supreme court of the United States uses this language: "Whenever the proof is that one in possession holds for him- self to the exclusion of ail others, this possession must be adverse to ail others." • * * Bradstreet v. Huntington, 5 Pet. 402, 440. And again, in Ewing v. Burnett, 11 Pet. 41, 52 : "It is well settled that to constitute an adverse posses- sion there need not be a fence, building, or other improve- ment made." • * » "it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for 21 years after an entry under claim and color of title." * * * "Where acts of owner- ship have been done upon land, which, from their nature, in- ����