Page:Harvard Law Review Volume 32.djvu/185

149 TITLE BY ADVERSE POSSESSION 149 possession.^^ A few courts apparently require continuous formal transfers to make privity, and hold that successive possessions cannot be connected by delivery of more than the tract actually described in deeds between the parties, although more is intended to pass and possession may be actually taken by the grantee.^^ According to the great weight of authority, however, if possession is transferred as to all, including the land outside the Hmits de- scribed, tacking is allowed.^® " If each grantee succeeds to the possession of his grantor, there is such privity between the occupants that their several possessions are referred to and regarded as continuous." It is said that " the privity required is a continuous possession by mutual consent, so that the possession of the true owner shall not constructively intervene." ^^ The courts have been somewhat put to it for an explanation of the doctrine that an oral agreement and delivery of possession, ordinarily not sufficient to transfer title to land, are sufficient to make "privity of estate." The theory advanced by the Wisconsin court is that privity is purely a question of continuity of physical possession, and has no relation to the transfer of title or claim of title. In Illinois Steel Co. v. Paczocha^^ the court remarks, "It is said that there must be privity between the successive occupants, but this does not at all mean that there must be a privity of title. . . . The privity between successive occupants required for the statute of limitations is privity merely of that physical possession, and is not de- pendent upon any claim, or attempted transfer, of any other interest or title in the land." " Peoples Water Co. v. Anderson, 170 Cal. 683, 151 Pac. 127 (1915); Tuggle v. Southern Ry. Co., 204 S. W. 857 (Tenn. 1918). ■*« Evans v. Welch, 29 Colo. 355, 68 Pac. 776, 779 (1902); Vicksburg, etc. Ry. Co. V. Le Rosen, 52 La. Ann. 192, 203, 26 So. 854 (1899); Messer v. Hibemia, etc. Soc, 149 Cal. 122, 124, 84 Pac. 835, 837 (1906); 29 Harv. L. Rev. 790. " Rich V. Naffziger, 255 111. 98, 99 N. E. 341 (191 2); Gildea v. Warren, 173 Mich. 28; 138 N. W. 232, 233 (1912); Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028 (1901); Bugner v. Chicago T. & T. Co., 280 111. 620, 637, 117 N. E. 711 (1917); Craw- ford V. Viking Co., 84 Kan. 203; 114 Pac. 240 (1911); 35 L. R. A. (n. s.) 498, note. «" Shedd V. Alexander, 270 111. 117, 126, no N. E. 327 (1915);^ Illinois Steel Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534 (1900). " 139 Wis. 23, 28, 35, 119 N. W. 550 (1909).