The Chief Justice
delivered the opinion of the court.
To an action of trespass for cutting and carrying away timber, the defendant pleaded not guilty. The controversy, on the trial, resolved itself into a question of title.
The land in controversy lies within the angle or gore formed by a line drawn from the south station point at Little Eggharbor to the north station point upon the river Delaware, at 41° 40' north latitude, as run by John Lawrence, in 1743, and a line drawn from the same south station point to the river Delaware, at the mouth of the Machackamac, the former being the line of partition between East and West Jersey, as claimed by tbe proprietors of East Jersey, and the latter being tbe line claimed by the proprietors of West Jersey.
The plaintiffs claim title under the East Jersey proprietors by virtue of two surveys, the first made to Newell, Debow, and Brinley, on the 27th of August, 1835, for 1343 acres, the second to Debow and Brinley, on tbe 15th of July, 1840, for 1087 acres. Debow and Brinley conveyed 1392 acres, part of the land covered by the two surveys, to George Cornelius, one of the plaintiffs, by deed dated July 2d, 1849 ; and Cornelius, in the same year, conveyed an undivided half part of the tract to Empson, the other plaintiff.
The defendant claims title under the West Jersey proprietors by virtue of a survey to William Griffith, in the year 1809. He also claims title by twenty years’adverse possession.
So far as relates to the documentary title, the charge of the court was in favor of the plaintiffs. Exceptions are taken to that pail of the charge only which relates to the defendant’s claim of title by adverse possession.. A great variety of errors are assigned. Many are clearly without [28]*28foundation, and were not insisted on by counsel upon the argument. Those only will be adverted to which were relied on by counsel.
1. It is insisted that the charge is erroneous, because the statute of limitations will not run against the board of proprietors of East or West Jersey. Whatever force there might have been in the position prior to the surrender of the government by the proprietors to Queen Anne, it is not. perceived upon what ground it can rest for support since that surrender.
The ancient maxim of the common law, “nullum tempus occurrit regi,” which is applicable in principle to every sovereignty, rests for its support upon a variety of grounds. One is, that the law intends that the king is always busied for the public good, and therefore has not leisure to assert his rights within the time limited to his subjects. 1 Bl. Com. 247.
Another is, that the public interests should not suffer detriment by reason of the neglect or corruption of the public officers. Hob. 526, 152, 166.
In the Magdalen college case, 11 Coke 746, it was resolved that the king, by general words of an act, should not be barred of any prerogative, estate, right, title, or interest; that he hath a prerogative “quod nullum tempus occurrit regi” and, therefore, that general acts of limitation do not extend to the king.
But the doctrine is applicable to every sovereignty, independent of any claim of prerogative, and it rests upon the simple ground, that the general words of a statute do not include the government, or affect its lights, unless such construction be clear upon the words of the statute. The rights of the government can only be affected by express words or necessary implication. United States v. Hoar, 2 Mason 312.
The exemption of the council of proprietors from the operation of the .statute of limitations can be sustained [29]*29upon neither of these grounds. Since the surrender of their powers of government, they have none of the prerogatives or attributes of sovereignty. They can claim no exemption from the operation of general laws. The language of the statute of limitations' is broad enough to include them; it extends in terms to all persons, to all lands, and to every action. Rev. Stat. 95, § 10, 11.
The language of the first and second sections of the act of 1787, (Rev. Stat. (552) is equally broad and explicit, and, if a fair and reasonable interpretation be given to them, they must operate to bar as well the claims of the council of proprietors as of all persons claiming under them.
The opinion of Washington, J., in Den v. Sharp (4 Wash. C. C. R. 616) assumes that' a possessory title may be set up against the board of proprietors.
It was earnestly insisted, upon the argument, that there is something peculiar in the character of the title of the proprietors. It is said to be “ imperial,” “ actual,” “ potential,” “ vital,” “ ubiquitous.” Admitting the propriety of these characteristics while the proprietors were de facto sovereigns, it is not perceived that there is at present anything whatever in the character of their title to distinguish it from that of any other extensive landed proprietor.
The policy of modern legislation, both in England and America, has been to subject the sovereign power itself to the operation of the statute of limitations. By the law of this state, the same lapse of time that bars an individual claim to lands bars the claim of the state. Rev. Stat. 95, § 34.
It is not to be assumed that the legislature designed to leave the claim of the proprietors upon higher grounds than that of the state itself.
The second error relied upon is, that the defendant was in possession as a naked trespasser without color of title, and that consequently his title by possession should have [30]*30been strictly limited to the land held by him under actual ltivation or enclosure.
The defendant claims under a deed of conveyance and a title deduced from the council of proprietors of West Jersey. So far as the evidence shows, he and those under whom he holds have always claimed by virtue of that title. Conceding that no title whatever passed by the original West Jersey survey to William Griffith, still the defendants are not in possession as naked trespassers. A mere defect of title does not disparage a claim by color of title. Nor does the fact, that the land is described as within the angle or disputed territory between East and West Jersey, show that the claim was made mala fide or that it was fraudulent in law. It charges the defendant, undoubtedly, and those under whom he claims with knowledge that the. title was questionable; that the true location of the boundary line was unsettled; but it does not charge them with knowledge that the title was defective, or with ' fraud in taking it. Had the true boundary line been definitely established prior to the location of the survey, the question would have been presented in a totally different aspect.
Whether there was or was not actual fraud in the location of the survey, was a question for the consideration of the jury, and was properly left for their determination. So far as the evidence shows, there is no ground to assume that there was actual fraud either in the inception or continuance of the claim. The purchase by General Read was for a valuable consideration, and the claim, it is fair to assume, was insisted upon by himself and his heirs in perfect good faith.
A claim to land in East Jersey under a West Jersey survey, originating since the surrender by the proprietors of the powers of government, has, for reasons already suggested, no analogy to a claim under a grant by a foreign government. Such grants are held to involve questions [31]*31of national right for the disposition of the government, rather than those of private right for the adjudication of courts. Jackson v. Ingraham, 4 Johns. R. 182.
The third error relied upon is, that the court declined to charge the jury, “ that the facts and circumstances proved on the part of the defendant could not establish for him any title by possession to the lands in controversy.”
It is objected, in limine, that this is a question of fact, and was properly submitted to the jury. 'What constitutes adverse possession, is a question of law ; and if the evidence in the cause, admitting its truth, does not show such possession, it is the duty of the court so to declare. The question for the consideration of this court is, what constitutes adverse possession, and what evidence is necessary to sustain it?
Tt is a settled rule, that the doctrine of adverse possession is to be taken strictly; it is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. A party claiming title by adverse possession always claims in derogation of the right of the real owner. lie admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the statute of limitations. Claiming a benefit from his own wrong, his acts are to be construed strictly. Jackson v. Sharp, 9 Johns. R. 167; Jackson v. Waters, 12 Johns. R. 365 ; Proprietors of Kennebec v. Springer, 4 Mass. 418 ; Den. v. Hunt, Spencer, 491.
To sustain a title by adverse possession, the defendant must prove a continued, open, visible, and exclusive possession. His possession, moreover, must be marked by definite boundaries, designated either upon the land itself or by the description in his deed.
The land must have been in the constant and uninterrupted possession of the defendant and those under whom [32]*32he claims the length of time prescribed by the statute of limitations. It must be a continued possession; an occasional exercise of dominion by broken and uninterrupted acts of ownership, either by the same person or by different persons, will not establish a right. The legal title always draws to it the constructive possession, and if the possession of the trespasser is interrupted the possession of the real owner is renewed, and that without actual entry. The possession and the right go together until there is an actual possession adverse to the right. Neither actual residence on the soil nor actual cultivation or. enclosure are necessary, but there must be something tantamount to one or the other of these. No matter how long the real owner is out of actual possession, his title and his constructive possession remain until an actual hostile possession is taken. He may never have made an actual entry or set his foot upon the soil, he is nevertheless, by virtue of his title, in constructive possession. A wrongdoer can derive no aid from title; he rests upon possession alone; the law gives him no constructive possession. Actual occupancy, the pedis positio, is his only warrant, and upon that he must rely.
The act of limitations, say the Supreme Court of Pennsylvania, does not prevent the entry of the owner of the land and bringing an ejectment at any time, unléss where there has been an actual, continued, yisible, notorious, distinct, and hostile possession for twenty-one years. Hawk v. Senseman, 6 Serg. & Rawle 21.
The possession, say the Supreme Court of Massachusetts, which would defeat the plaintiff’s claim for damages for the whole trespass charged must have been a continued possession, an actual occupation to the exclusion of the rightful owner. To extend the principles relative to adverse possession beyond the case of an actual, open, visible, and exclusive possession, would be of the most dangerous consequence, and would be in effect authorizing [33]*33trespass by law. Proprietors of Kennebec v. Call, 1 Mass. 483.
Tlio occupation must be of that nature and notoriety that the owner may be presumed to know that there is a possession of the land adverse to his title, otherwise a man may be disseized without his knowledge. Proprietors of Kennebec v. Springer, 4 Mass. 418.
There must be, say the Supreme Court of New York, a real and substantial enclosure, an actual occupancy, a possessio pedis, which is definite, positive and notorious, to constitute an adverse possession, when that is the only defence, and is to countervail a legal title. Jackson v. Schoonmaker 2 J.R. 234.
To sustain title by adverse possession, say the Supreme Court of New Hampshire, the defendant must prove a continued, open, visible, and exclusive possession. Smith v. Hosmer, 7 New Hamp. 441.
Mr. Griffith, whose opinion upon this subject is entitled to the highest consideration, states the rule in clear and explicit terms. “ Mere surveys on waste or outlands unenclosed and uncultivated, or deeds for such lands, or other claim of title, and occasionally cutting and carrying off the wood and timber, is not such a possession as displaces the right owner : such acts as these amount only to entries and trespasses, and may be treated as such at all times. They are not such twenty years’ notice of an adverse possession of land as the statute intends.” 4 An. Law Register 1269.
The same principal will be found fully sustained in a great variety of cases. Stocker v. Berny, 1 Ld. Raym, 741 ; Viner's Ab. Disseisin, A. 3; King v. Parishoners of Wilby, 8 Mod. 287 ; Johnson v. Irwin, 3 Serg. & R. 291; Gonzalus v. Hoover, 6 Serg. & R. 118; Small v. Proctor, 15 Mass. 498 ; Hall v. Glidden, 10 New Hamp. 401; 2 Greenl. 242,; Boston Mill Co. v. Bulfinch, 6 Mass. 233; Brandt. v. Ogden, 1 J. R. 156 ; Doe v. Campbell, 10 Johns. R. 477; Wright v. [34]*34Guier, 9 Watts, 175 ; Lessee of Potts v. Gilbert, 3 Wash. C. C. R. 475.
Does the evidence in this cause on the part of the defend- ' ant, assuming it all to have been believed by the jury, show-such possession as is required by law to establish a title against the rightful owner %
The Griffith survey, under which the defendant claims title, was made in the year 1809. The tract is 730 chains, more than nine miles in length. It consisted exclusively of. wild uncultivated lands. From 1809 to 1829, no possession ' is attempted to be shown. In the year 1829, Samuel G. Wright and Samuel J. Read, being the joint owners of the the entire tract, agreed to make partition. The land was ' surveyed, and the southern moiety allotted to Read. From that period each held his share in severalty. In the fall.of 1829, General Read commenced cutting and coaling on his share of the tract, and continued his operations during the years 1830, ’31 and ’32. During this period, four or five cabins were erected on the land, which were occupied by the woodehoppers with their families. About 500 acres of the southern extremity of the tract were cleared off; several thousand cords of wood were cut for the use of Dover furnace (iron works belonging to General Read), about six miles distant from the tracts in question.
In the year 1836, there was more wood cut on some portion of the tract, but the exact location or extent of the cutting does not appear by the evidence, nor is it material. In the same year damages were claimed and received by General Read from George Cornelias, for cutting over ninety acres within the limits of the survey. On the 2d of October, 1836, General Road died. In the year 1837, his administrator applied to the Orphans Court of the county of Monmouth to sell all his real estate in that county. The administrators caused the tract to be surveyed. They took and sold the dead wood on the tract of ninety acres which had been cut over by Cornelius. They paid taxes. [35]*35In the year 1848, the timber having been injured by fire, a portion of the tract was surveyed, and sold in several parcels. The tract in question was sold and conveyed to Giberson, the defendant, who entered an d held possession to the commencement of the suit, which was on the 4th of June, 1850.
In the period of twenty years, during which adverse possession is sought to be established, no part of the land was under actual cultivation or enclosure. The owner never resided upon it. There was no actual occupancy, save by the woodchoppers. The only improvements were their temporary cabins. From 1832 to 1836 there is no proof of any actual occupancy or visible exercise of ownership over the property. From the death of General Read, in 1836, till 1846, the heirs never entered upon the premises for the purposes of clearing or cultivation or improvement. An occasional entry for the purpose of making surveys, a sale of decayed timber, the payment of taxes, are the facts relied upon to constitute a title by adverse possession. Do these constitute the actual, continued, visible, hostile possession required by law to oust the lawful owner of his rightful possession ?
Will an occasional entry upon wild and uncultivated lands for the purpose of cutting wood or making surveys, joined with the payment of taxes, by a party having no legal title, there being no actual residence upon any part of the land, no cultivation, no inclosure, no improvement, no actual occupancy for any purpose whatever, operate to bar the title of the rightful owner ? or may several distinct entries and acts of trespass, coupled with temporary actual occupancy for the purpose of cutting wood, be thus united, and constitute one continuous adverse possession ?
The question is certainly of great moment in this state, where there are extensive tracts of wild and uncultivated lands at all times exposed to trespasses and encroachments without the knowledge of the true owners. There [36]*36is no decision of this court to countenance the doctrine, and the, decided weight of authority elsewhere, as well as sound principle, is opposed to it.
In Den v. Hunt, Spencer 487, there was during the whole period an actual occupancy of a part of the tract. The possession was not only visible, accompanied by public : and notorious acts of ownership over the entire tract, but was actual and uninterrupted.
There is no difference, says Chief Justice Gibson, as regards occupancy, between a solitary trespass and repeated acts of trespass. An occupancy to raise the bar of the statute of- limitations is indefinitely continuous, while the occupanpy óf a trespasser, -who neither cultivates nor encloses, continues no longer than he remains in contact with the soil. Wright v. Guier, 9 Watts 175.
And in this view there is no distinction between a naked trespasser-and-one who enters under color of title. Both are'alike trespassers. The title papers of the latter may ■ serve to extend and define the limits of his occupancy, ¡but it does not change its character. He is nevertheless a trespasser, and the moment his actual occupancy ceases, the rightful owner, without actual entry, is in possession • by construction of law.
The mere payment of taxes cannot prove possession. It may be evidence of a claim'of title; it may serve to explain the character of the possession, and to extend it beyond the-limits of actual occupancy; but the payment of taxes by a party not having the -actual possession of any part of the premises cannot prove possession. It would give ’the owner of the land no right of action against'the ;party paying taxes as a trespasser; and no act can show possession in a party doing it which will not afford-to the owner of the land a remedy by action. Naglee v. Albright, 4 Wharton 291.
In Sorber v. Willing, 10 Watts 141, the defendants relied upon the statute of limitations, and, to avail themselves of [37]*37it, proved that their father had gone upon the land in 1812, and built a saw mill, which continued in operation till 1817, when it went to decay, and finally to ruin ; but, with out having had a dwelling on the land, he sold his claim to. one of his sons, who, in 1830, built a saw mill on another site, which continued in operation till the commencement of the suit. The ejectment was brought in 1838. Between the years 1817 and 1830, the first occupant and his son, living upon another tract, continued to cut wood from the premises in question .every year. The court below was of opinion that nothing less than an actual continued occupation of the land for twenty-one years would give title under the statute of limitations, and that evidence of the defendants having occasionally occupied the land, and always used it as woodland, although they had paid all the taxes, would not entitle them to recover. Upon a writ of error, Chief Justice Gibson, delivering the opinion of the Supreme Court, said: “ Of the twenty-six years that elapsed between the first entry and the action, the defendants were out of possession half the period, and the longest period of actual adverse possession consisted but of eight years. Unless, therefore, they can connect their two periods of actual possession by an intermediate adverse link, their defence on the statute must fail. That link is attempted to be supplied by evidence that they or their father had paid the taxes. But does payment of the taxes alone constitute an actual adverse possession ?” After examining the authorities, he concludes — “Payment of taxes alone, therefore, though it may extend the limits of an adverse possession, does not constitute it. Like any other voluntary payment of another’s debt, it gives no right or advantage against the owner. There must be along with it an actual occupancy of at least a part of the land; and for half the period there was no such occupancy in the case before us. If the defendants claim to the title [38]*38had not been abandoned, at least their occupancy had been intermitted.”
So in the case before us. Admitting that General Read had the possession of the lands from 1829 to 1832, and • again in 1836, while actually .engaged in cutting and coaling upon the tract; admitting again, that his heirs, after his death, had the actual occupancy while engaged in-carting off the decayed wood from the ninety acre tract cut over by Cornelius, still they were out of the actual .occupancy of the land more than half of the period during which the defendant claims that the property was held by adverse possesssion. Nor can an occasional entry upon the land to make surveys, nor the payment of taxes connect the periods of actual' adverse possession, so as to constitute one continued, visible, adverse possession for twenty years. These acts show clearly a continued claim of title, but they do not prove an uninterrupted - possession.
The cases of Ellicott v. Pearl (10 Peters 412), and of. Ewing v. Burnet (11 Peters 41), are relied upon as militating against ’this principle; bm neither of them, fairly considered, can avail to support the claim of the defendant. In Ellicott v. Pearl, there was an actual occupancy of part of the tract under color of title, which was held to give constructive possession of the entire tract. In Ewing v. Burnet, the premises in dispute was a vacant lot in the city of Cincinnati. The charge of the court upon the trial was, that suing for trespass on the lot, paying the taxes, and speaking publicly of his claim, were not sufficient to constitute an adverse possession. That exclusive appropriation by actual occupancy, notice to the public and all Concerned of the claim and enjoyment of profits by defendant, were all necessary. And upon writ of error, the Supreme Court lays down the principle thus: “ It is well settled, that to constitute an adverse possession there need [39]*39not be a fence, building, or other improvement made ; it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for twenty-one years after an entry under claim and color, of title. So much depends on the nature and situation' of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult fo lay down any precise rule adapted to all cases. But it may with safety be said, that where acts of, ownership have been done upon land, which from their nature indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant, without interruption or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of a former owner, and an actual adverse possession against him, if the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held.” Admitting the entire soundness of the principle thus stated, it is not perceived that it aids the defendant’s case or sustains his claim of title. Giving to the defendant’s evidence its utmost latitude, assuming that it was fully credited by the jury, it failed to establish twenty years’ adverse possession in the defendant and those under whom he claimed, and the court should so have instructed the jury. Upon this ground, the judgment should be reversed.
This view of the case renders it unnecessary to express any opinion upon another question, fully discussed upon the argument, vis. whether the doctrine, that a party who enters bona fid,e under a claim of title, and occupies a part of the tract, shall be deemed in constructive possession of the whole tract described in his deed, applies to all cases, whatever may be the nature of the possession or the extent of the tract; or whether it is strictly limited to cases of actual occupancy and to small tracts or parcels appm tenant to the part thus occupied. The question is not free [40]*40from difficulty, aud the authorities are in conflict respecting it. No opinion upon the point is necessary in this case.
The judgment must be reversed, and a venire de novo 'awarded.
Cited in Cobb v. Davenport, 3 Vr. 385.