Proprietors of Kennebec Purchase v. Laboree

2 Me. 275

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1823
• Status: Published

Opinion

Mellen C. J.

The general title of the demandants to what Is commonly called the Plymouth claim or patent, is not disputed. But it was urged by the counsel for the tenant, that the land demanded in this action, though within fifteen miles of Kennebec river, is not within the true bounds of the claim. The deposition of Ballard has been relied on to shew what are the utmost limits of Cobbessecontee; and of course what is the true southerly line of the patent. If the line run by him be the true line, it is admitted that the land in dispute lies north of it. The release from the Commonwealth of Massachusetts, bearing date Februa?y 18, 1789, to the company, conforms to this line; and it has once or twice been decided by the Supreme Judicial Court of that Commonwealth, that this release has settled the question as to the limits of the claim. Besides there is, we may say, an almost universal acquiescence, even among the settlers themselves who are upon the tract, with respect to this point; and for nearly thirty years past the Courts have considered the question as at rest; though within that time it has, by a few individuals, been moved and briefly discussed when all other grounds of defence had failed. Without dwelling on this part of the cause, we would observe, that we consider the south line as established, and of course the title of the demandants to the premises in dispute is a valid one, unless it is defeated, in whole or in part, by the facts and principles which the tenants rely upon in their defence. This defence is grounded on the possession which they, and those under whom they claim, have had of the demanded premises; the west half or part, for more than thirty years next before the commencement of the action, having been completely and constantly occupied and improved and inclosed by fences; and the east half or part having been claimed and possessed by marked trees, and lines, and corner bounds, and the cutting and carrying away of timber and wood, as occasion required, for more than thirty years before the action was commenced; and during that time by payment of taxes on the premises demanded, and eXercising an authority over the lands by forbidding persons to cut wood, &c. thereon.

The counsel for the demandants, to this defence, have op* posed sundry objections, which may be reduced to two heads.

1. They have contended, that the possession above mentioned has not been of such a nature as to amount to a disseisin of the demandants as to any part of the demanded premises.

2. But if they have been disseised of any part for thirty years next before the commencement of this action, it is only of the west half or part; and that as to the residue of the premises they are entitled to judgment, notwithstanding any of the provisions of the Stal. 1821. ch. 62. sec. 6. which have been urged and relied upon by the counsel for the tenants.

As to the Jí?-sí point. — By an inspection of the facts reported in this case, it does not appear in express terms with what motives Nathan Longfellow entered into and occupied the premises, or his son after him, or those to whom his interest was conveyed. It is not stated that the possession was adverse, and under claim of title; nor that it was by the express or implied permission of the proprietors. The intentions then of those, who successively possessed the lands, must be collected from the acts they performed, the language they used, and all the circumstances attending the possession.

The opening counsel for the demandants, with great industry and intelligence, has collected and arranged a long list of authorities ; many of which were intended to shew that no possession of the lands of another can amount to a disseisin of the true owner, unless such possession appeared to be under a claim of title, and of course an adverse possession; and unless it was also open, notorious, continued, and exclusive, and the extent-of it marked by fences inclosing the lands, and erected for the purpose of protecting them from incursion. We do not deem it necessary for us to bestow particular attention on the numerous cases and books referred to on this head.

The doctrine of the common law on this subject seems to be plain and well settled. A possession must be adverse to the title of the true owner, in order to constitute a disseisin. The possessor must claim to hold and improve the land for his own use and exclusive of others. The cases cited from the JYezu-Yorh Reports appear to be in accordance with these principles. It may be more to our present purpose to compare those principles with the law of disseisin, as understood, recognized, and practised upon in Massachusetts, prior to our separation from that State, and by this Court since its organization, in those cases which have come before us. We are inclined to believe that upon examination it will be found that the principles of the common law are applied in England, and in jVewYorlt, with more strictness, as it regards the occupant of the land, than they have ever been in Massachusetts, or with us, upon the doctrine of disseisin, at least so far as relates to the presumption of law in reference to the intentions of the possessor. However this fact may be, so far as we have been able to examine and ascertain, it appears that in the trials which have taken place for a long series of years in the Supreme Judicial Court, before we became an independent State, it was never considered incumbent on the tenant in the case of a count on the demandant’s own seisin, to prove any thing more than his continued and exclusive possession and occupancy, for thirty-years next before the commencement of the action, using and improving the premises, after the manner of the owner of the fee ; such possession, occupancy, and improvement, unless explained, affording satisfactory evidence to the jury that such tenant claimed to hold the lands as his own..

This was the common course of proceeding, and no distinct and additional proof was necessary, in the first instance, to show that such possession was adverse, and under claim of title ; nor necessary in any stage of the cause, unless rendered so by proof offered on the part of the demandants, tending to shew that such possession was never intended to be adverse, but on the contrary in submission to or consistent with the title of the true owner. In Commonwealth v. Dudley, 10 Mass. 407, Jackson J. when speaking of the possession of a third person, which might defeat the operation of the deed of the true owner, says, “ the possession is not of itself conclusive “ against the effect of the conveyance. It may always be ex- “ plained, as by shewing that the occupant was tenant for “ years of the grantor, or that he held in any other manner “ with knowledge of the grantor’s title, and acknowledging its “ validity.” A vast number of suits, wherein the- present demandants were parties, have been tried and decided on these principles. In some cases the presumption of adversary claim has been removed, by proof on the part of the demandants, and, of course, the title by disseisin set up by the tenant has failed ; and in all other cases it has succeeded, if open, continued and exclusive. This course has been so long pursued, and such has been the uniform and steady acquiescence in its legality, by successive Judges, lawyers and the community at large, that we do not feel authorized or inclined to change it.

In the case at bar, the tenants have proved their possession of the west half or part of the premises by fences, which have enclosed it for more than thirty years next before the commencement of the action. These fences have been repaired, and renewed by the possessors ; a house has been erected on the land ; improvements gradually made and extended; corner bounds and lines preserved ; the income exclusively enjoyed by the successive occupants ; taxes paid by them, and the controling power of a rightful owner constantly and peaceably exercised, during all the above term. This is the usual process of a disseisin, and brings the case within the principles relating to disseisin, as understood, recognised, and in practice in this State. No fact appears, tending in any degree to shew that the possession was under the title of the demandants, and not completely adverse to it. We are therefore of opinion, that the first objection of the demandants’ counsel cannot preSail; and that as to the west half or part of the premises in íjuestion, the tenants have established a good and valid title.

. * As to the second point. The questions which have arisen in our consideration of this part of the cause have presented some doubts and difficulties; and for that reason we have delayed due decision until this time. The merits of the objection we are now examining, and of that part of the defence to which it ie, opposed, must depend on the construction to be given to the sixth section of the statute of limitations of 1821, ch. 62. The demandants’counsel contend that they are not bound im this case, by the provisions of that section; that it is retrospective, unconstitutional, and so far as it respects past transactions' and vested rights, is Yoid.

All this is denied by the counsel for the tenants, who considers the section as introducing no new principle ; but only as removing doubts, and in clear language expressing what the common law was before, which in some recent decisions appeared to have been mistaken, and rendered in some measure uncertain. Hence it becomes necessary for us to ascertain, in the first instance, what were the true principles of the common law on the subject of disseisin, at the time our statute of limitations was enacted, and then inquire whether those principles have been altered, and if so, to what extent, by the before mentioned section of that statute. We have already stated some of the general principles of the common law respecting disseisins, more particularly with reference to a claim of right oh the part of the person in possession, and the nature and presumption of his intentions in holding possession. We would now add that the possession must not only be, in its nature, adverse to the rights of the true owner, but it must be open, notorious, continued, and . exclusive. Atkyns v. Horde, 1 Burr. 60. Butle's notes to Co. Litt. 380, b. note 285. Smith v. Burtis, 6 Johns. 198. Brandt v. Ogden, 1 Johns. 158. Jackson v. Waters, 12 Johns. 368. Jackson v. Schoonmaker, 2 Johns. 230. But the facts, relied on to prove the possession exclusive, may be different in different cases; and such are not, and cannot be distinctly defined in our law books, when laying down general principles. They must however be such as at once to give notice to all, of the nature and extent of the possessor’s improvements and claim ; and show the exclusive exercise of dominion over the land, and appropriation of it to his own use and benefit. It must.be such an open and visible occupancy, that the proprietor may at once be presumed td know the extent of the claim and usurpation of him who has intruded himself un-. lawfully filth his lands, with intent to obtain a title to them by wrong, f

We-ápprehcnd that there were several modes of shewing the exclusiveness of possession, before the statute of limitations was passed, besides natural boundaries, or surrounding fences. We are sensible that since the decision of the case of Ken. Prop'rs v. Springer, 4 Mass, 416, a different opinion has been entertained, and a different practice has prevailed in jury trials in the several Courts before and since our separation. And no distinction seems to have been generally made in such trials, between those cases where the person in possession entered and claimed to hold under a deed duly registered, (though from a person not owning the estate,) and where he. entered without any such deed, and without any claim or colour of title. In both cases trials have proceeded on the same principles; and it has been usual to call on the tenant to prove that he himself, or he and'those under whom he claimed, had possessed the land within fences for the time by law required to bar such action, Now we apprehend there is a distinction between the two cases above mentioned, which has often been sanctioned by individual Judges of Massachusetts, and of this Court; and in some reported cases decided by the Supreme Judicial Court of that Slate, it seems to have been expressly recognized as law. This distinction, when examined, may serve to aid us, in giving a construction to the section in question, and render the case of Ken. Prop’rs v. Springer liable to no objection.

It seems to us, that the principles of that decision have not been understood exactly as was intended by the learned and distinguished Judge, who pronounced the opinion. By a careful examination of that case, it does not appear, in any part of it, that the Court expressly decided, that a surrounding fence for thirty years was necessary to constitute a disseisin, even v?hen the occupant entered without any claim of title under a deed. It is true it appeared in that case that the land demanded had not been fenced for thirty years. It had only been run round and its lines marked by a surveyor at the request of the tenant’s father. The Chief Justice says, “ There is no “ evidence that he (the father) ever fenced any part of the “land, till the year 1792, which is within thirty years, or ex- “ ercised any act of ownership on it, except that he some “ times cut the grass on a small meadow which was part of it. “ The running round the land by a surveyor, and marking the (£ lines by the direction of one who claims no title in the land, is “ not such an exclusive occupation of the land as can amount “ to a disseisin of the demandants; neither can the cutting “ grass on the meadow by Springer, who does not appear to “ have claimed the land, amount to a disseisin. To constitute “ a disseisin of the owner of uncultivated lands, by an entry “ and occupation of a party not claiming title to the land, the “ occupation must be of that nature and notoriety, that the owner “ may be presumed to know that there is possession of the “ land adverse to his title.” But this does not prove that nothing except a natural boundary or a surrounding fence would in any case constitute a disseisin. It rather seems to show that it is one mode of proof, and in some cases it may be the only one. If we are correct as to the import and extent of the above cited decision, it will not be found to have established any principle variant from the former part of the section, as hereafter explained and construed, We shall notice this more particularly, when we examine the different parts and provisions of the section..

We now proceed to notice the distinction which we have before alluded to, between an entry upon, and a possession of another’s land, without a claim of right under a recorded deed, or other matter of record; and an entry upon and a possession of such lands, under such a claim and such a deed or matter of record. The case of Ken. Prop'rs v. Springer expressly recognizes and establishes this distinction. Parsons C. J. in delivering the opinion of the Court, says, “ When a <£ man enters on land, claiming a right and title to the same, “ and acquires a seisin by his entry, his seisin shall extend to ££ the whole parcel; for in this case, an entry on part is an “ entry on the whole. When a man not claiming any right op “ title to the land, shall enter on it, he acquires no seisin but “ by the ouster of him who was seised; and to constitute an “ ouster of him who was seised, the disseisor must have the “ actual- exclusive occupation of the land, claiming to hold it “against him who was seised; or he must actually turn him “ out. When a disseisor claims to be seised by Iris entry and “ occupation, his seisin cannot extend further than his actual “ and exclusive occupation” It is evident from the whole case, that when the Chief Justice is speaking of an entry of a person claiming title, he means claiming it under a deed of conveyance, or some other matter of record. Perhaps it may be said that when speaking of such claim of title, he means a good right and title against all others; but in the case of Higbee & al. v. Rice, 5 Mass. 344. the same Chief Justice in pronouncing the opinion of the .Court, says, “ A conveyance “ by deed duly acknowledged and registered, is, by our statute “of enrolment, equivalent to livery and seisin. Under this “ deed the tenant entered into the whole,- and acquired a free- “ hold estate either by right or by wrong. If by wrong, as “ appears in this case, it was an actual disseisin.” See also Jackson v. Elston, 12 Johns. 454.

From these two cases then it appears that if a man enters upon a tract of land under a deed duly registered, though from one having no legal title to the land, and has a visible possession, occupancy and improvement of only a part of it, such occupation and improvement, unless controled by other facts, being continued thirty years, is a disseisin of the true owner of the whole tract; and the reason is, the extent and nature of his claim are or may be known by inspection of the public registry. Iiis deed being registered there gives notoriety to his act and his motives, respecting the lands he occupies. To this point see also the case Little v. Megquier, [ante, page 176.]

Having thus taken a view of the principles of the common law respecting the doctrine of disseisin, as existing and applied in this State at the time the statute of limitations was enacted, we now proceed to a more particular examination of the sixth section of the act. The section is in these words: viz..

“ Be it further enacted, that in any writ or action which has a been or may be hereafter brought, for the recovery of any ■ u lands, tenements or hereditaments, it shall not be necessary “ for limiting the demandant and barring his right of recovery, ■“ that the premises defended shall have been surrounded by fences, or rendered^ inaccessible by other obstructions, but it “ shall be sufficient if the possession, occupancy and improve- “ ment thereof by the defendant, or those under whom he “ claims, shall have been open, notorious, and exclusive; com- “ porting with the ordinary management of similar estates in “ the possession and occupancy of those who have title there- “ unto, or satisfactorily indicative of such exercise of ownership as is usual in the improvement of a farm by its owner; “ and no part of the premises demanded and defended shall “ be excluded from the operation of the aforesaid limitation, “ because such part may be woodland or without cultivation.”

The inquiry now is, whether the above quoted section has introduced any new principles of law, by altering the common law, as to the doctrine of disseisin. If the section had been concluded with the words “ shall have been open, notorious and exclusive,” we apprehend that upon the common law construction of those terms, it would not be considered as having established any new principle. This we have intimated before ; but the descriptive words which follow immediately and complete the sentence, were evidently intended to explain, qualify and restrain the generality of the terms “ open, notorious and exclusive,” and thereby change their meaning; otherwise they must have been used without any intention; and this we are not to presume. The only sensible, fair, and rational construction of the whole sentence is this; that it shall be sufficient if the possession of the defendant shall have been as “ open, notorious and exclusive” as is usual in the case of the ordinary management “ of similar estates in the possession and occupancy of those who have title thereunto.” The concluding sentence of the section is in unison with this idea, and a distinct affirmation of it. In a word, the w'hole section, taken together, appears to have been enacted with a view, and for the purpose of abolishing the distinction, well known to have then existed between a possession under a claim of title on record, and a possession without any such claim or pretence of title. For by law, as well known and understood, there was no such thing as a constructive possession in favour of a person entering and claiming to hold by disseisin merely, without title or colour of title. The object of the section was to authorize and require a constructive possession in both cases ; and to attach to it the same. legal consequences in respect to the rights of thd demandant.

If the section had been in its terms prospective only, or been so worded as to admit of our giving it such a construction, on the ground that such was the intention of the legislature, no objection would exist against their authority to enact it; nor would there be any inconveniences in giving it the intended operation. Nor is there now any objection to the provisions of the section, so far as they may apply to and govern facts, which have taken place since the act was passed, or may take place in future. Whether the section, or any part of it, be liable to the objections, which have been urged against it by the counsel for the demandants, as being retrospective and unconstitutional, is a question which remains to be considered.

The section is certainly retrospective as well as prospective. It professes to establish principles by which causes, then pending, as well as those w'hich might in future be commenced, should be decided. It professes to operate on past transactions, and to give to facts a character which they did not possess at the time they took place; and to declare that in the trial of causes depending on such facts, they shall be considered and allowed to operate in the decision of such causes, according to their new character. It professes to settle rights and titles depending on laws as they existed for a long series of years before the act was passed, by new principles which, for the first time, are introduced by its provisions. It professes to change the nature of a disseisin, and of those acts which constitute a disseisin, and thereby subject the true owner of lands to the loss of them, by converting into a disseisin, by mere legislation, those acts which, at the time the law was passed, did not amount to a disseisin. It professes to punish the rightful owner of lands,'by barring him of his right to recover the possession of them, when, by the existing laws, he was not barred, nor liable to the imputation of any laches for not sooner ejecting the wrongful possessor. — It is true that there is no express provision in our constitution, as there is in that of New-Hampshirg, by which the legislature are prohibited from enacting retrospective laws ; though upon examination, we apprehend it will be found to contain certain provisions which were intended to be, and must be considered, as prohibitions. These will presently be noticed. In the case of Fletcher v. Peck, 6 Cranch. 87. C. J. Marshall, in pronouncing the opinion of the Court, says, “ It may well be doubted whether the nature of society and of “ government does not prescribe some limits to the legislative “ power; and if any be prescribed, where are they to be found, “ if the properly of an individual, fairly and honestly acquired, “ may be seized without compensation.” When speaking of the act of Georgia, he observes, “ the validity of this rescind- “ ing act, then might well he doubted, mere Georgia a single sovereign “power. But she is a part of a large empire. She is a mem- “ ber of the American Union; and that Union has a constitution “ which declares that no State shall pass a law impairing the “ obligation of contracts.” He afterwards adds, “ The estate- “ having passed into the hands of a purchaser for a valuable “ consideration, without notice, the State of Georgia was re- “ strained, either by general principles which are common to all our “ free institutions, or by the particular provisions of the constitu- “ tion of the United States.” In the case of Society, &c. v. Wheeler, 2 Gal. 105, Story J. in delivering his opinion says, — “Upon “ principle, every statute which takes away, or impairs, vested v rights, acquired under existing laws, or creates a new obliga- “ tion, imposes a new duty, or attaches a new disability in re- “ sped to transactions or considerations already past, must be “ deemed retrospective ; and this doctrine seems fully support- “ ed by authorities.” He cites Calder v. Bull, 3 Dall. 386, and Dash v. Van Kleek, 7 Johns. 477, and then adds, — “ The “ reasoning in these authorities, as to the nature, effect and in* “ justice in general of retrospective laws, is exceedingly able “ and cogent; and in a fit case, depending on elementary princi- “ pies, I should be disposed to go a great way with the learned “ argument of Chief Justice Kent.” It was not necessary in that case to decide on elementary principles, in consequence of the provision in the constitution of New-Hampshire respecting retrospective laws, to which we have before alluded. We will not cite passages froin the opinion of the Court in Dash v. Van Kleek. The whole case is full of learning upon the subject now under' consideration.- See also King v. Dedham Bank, 15 Mass. 447. Medford v. Learned, 16 Mass. 215. Foster v. Essex Bank, id. 245.

The provisions in our constitution relating to this subject are the following'.

The first is contained in the first article of our declaration of rights and the first section. — This section, among other things, secured to each citizen the right of “ acquiring, possessing, and “ protecting property, and pursuing and obtaining safety and “ happiness.” By the spirit and true intent and meaning of .this section, every citizen has the'right of “possessing and pro- “ tecting property” according to the standing laws of the state in force at the time of his “' acquiring it', and during the time of his continuing to possess it. Unless this be the tru'e construction, the section seems to secure no other right to the citizen, than that of being governed and protected in his person and property by the laws of the land, for the time being. Such a provision for such a purpose merely, would not have been introduced, even by jealousy itself. The design of the framers of our constitution, it would seem was, by the part of the section above quoted, to guard against the retroactive effect of legislation upon the property of the citizens. This construction is strongly corroborated' by the language of the constitution of this States article 4, part 3,- sect. 1, defining the powers delegated to the legislature ; viz — “ The legislature shall have full “ power to make and establish all reasonable laws and regüla- “ tions, for the defence and.benefit of the people of this State, “ not repugnant to this' constitution, nor to that of the United “ States.”

The twenty-first section of the- article first quoted is in these words; — “ Private property shall not be taken for public uses, “ without just compensation; norunless the public exigences “ require it.” This article was designed to guard private property from the operation of laws merely prospective, in all cases except of public exigency; — and even then the individual is not to be injured by the ademption of his property; he is to receive “just compensation.”- — But the private property of one-man cannot be taken for the private uses of another in any case. It cannot by a mere act of the legislature be taken from me man, and vested in another directly; nor can it, by the retrospective operation of laws be indirectly transferred from one to another; or subjected to the government of principles in a Court of Justice,'which must necessarily produce that effect.

In order to shew the importance and correctness of the principles which we have stated, and to render them- still more •plain, one or two illustrations inay be useful.

According to the law now in force in this State, revised in 1821, no devise of real estate is valid, unless the will is attested by three or more witnesses. — Let us suppose a will made on the first of January 1822, and attested by only two witnesses.— Should the devisee of a tract of land, thus devised, enter int© possession, and hold it against the heir at law, such heir could maintain his writ of entry against.the devisee; and the will, thus imperfectly executed, could furnish him with no legal defence in the action. — But let us suppose further, that at the next session of our legislature, they should pass a law declaring that, in any action then pending, -or which might be ^ brought, it should not be necessary in any such action, ■ “ brought by an heir against a devisee, claiming the premises “ demanded, under the will of the ancestor, for the defendant “ to prove that the said will was attested by three or more wit- “ nesses; but that it should be sufficient to bar such- action, if “ on trial it should appear that said will was attested by to* “ witnesses only.’’1’

Now if after the passage of such a law, the heir, in the case supposed, should bring his action against the devisee to recover seisin and possession, can any Judge or any man in the exercise of a sound understanding for a moment believe that such a law could create and furnish to the tenants a substantial defence in the action ? The question admits of only one answer.

According to existing laws, deeds of conveyance of real estate must be under seal. Such deeds, to pass a fee-simple estate, must contain certain legal terms ; viz. — the conveyance must be to the grantee and his heirs. To entitle a widow to dower in her deceased husband’s estate, he must have been seised of }t during the coverture. Now if our legislature should at the next session pass a law declaring that all deeds of conveyance of real estate, that had before that time been executed, or should in future be executed, should be considered and adjudged sufficient in law to pass the estate therein described, in fee simple, though such deeds were not under seal, and contained no words of inheritance ; — and that a widow should in ail cases be entitled to dower, in her deceased husband’s estate where he had died,, or might in future die, seised of such estate at-any time before as well as during the coverture ; — will the principles on which a free government is founded, — will the principles of common honesty and justice, sanction such a law, so far as to give it a retroactive effect, and thereby disturb, impair- and destroy the vested rights of those, who had become the owners of the estates undei-'¿/ie?2 existing laws ? There is yet another point of view in which the subject may be placed, well adapted to shew the character of the provisions of the section in question, and the danger of giving legal effect to them in the manner contended for by the counsel for the tenants. According to the well established principles of the common law, as we have, before observed, no man or corporation can maintain a writ of entry against any person who, for thirty years, has had the open, notorious, adverse and exclusive possession of lands belonging to such man or corporation. Against such a claim, such possession is a good and sufficient title in law. Would it be in. the power of the legislature to, divest and destroy such a title by a mere act of retrospective legislation ; — and by declaring that such a possession and disseisin should avail nothing in -an, action brought to recover possession of such lands ? The mere statement of the case shews that a law of the description above mentioned would, if it could produce the intended effect, violate the plainest principles of law and justice. — To illustrate the case and bring it borne to the understanding of all, let us, suppose .that the tenant in this action, and those under whom he claims, at the time it was commenced, had been in the open, adversé and exclusive possession of the demanded premises, for thirty years, and during all that time had maintained surrounding fences. Let us further suppose that the action had not yet been tried, but was to be tried at this term. Let us further suppose that the legislature, at their last session, had passed a law declaring that in all actions, then pending or that might be commenced after the passing of such act, no adverse, no-» torious and exclusive possession of the demanded premises, although surrounded with fenced, should be a bar and constitute a good defence in such action; unless such possession and disseisin has, or shall have been continued for forty years, next before the commencement of such action. — Now would the tenant or any other man, understanding and respecting principles, consider such a law constitutional ? On the contrary, would it not be at once pronounced unjust and void ? If such an act of the legislature could be sanctioned, not only the tenant, in the circumstances wp have supposed, would be deprived of his estate by a destruction of vested rights, but a large class of citizens, similarly situated, would suffer under similar deprivations. The more the principle of the section jin question is examined, the more distinct becomes its objectionable features.

We have thus far considered the section in question rather in the light of a law defining and settling the rights of parties jn real actions,'and establishing certain principles to be observed in their decisions by Courts and juries. We now proceed to consider it as a part of a statute of limitations, and examine its character and merits in that point of view. The authority pf the legislature to pass statutes of limitations, in the form in which 'they are usually enacted, will not be denied. Such statutes have been considered salutary in their consequences. With respect to personal actions, they serve to render peoplé attentive to the early adjustment of demands, and prevent the disturbance of settlements which have been made, but of which the proof may have been lost. But in all such cases, the legislature have allowed a certain time, after the passage of the law, and before its operation should commence, within which, creditors might institute legal process for the recovery of the debts due them, if they should incline so to do. And it is very clear that if no such interval is allowed, but the act is permitted to take effect instanter, thereby depriving creditors at once of all legal remedy for the recovery of those demands which it purports to bar, — it unquestionably violates the constitution, by “ impairing the obligation of contracts — and the Courts of law would be bound to consider it as void. The limitation of rml actions is equally salutary; and the community has doubtless derived much advantage from those laws which have gradually reduced the time, after which the owners should be barred of their actions. But all such laws have allowed a reasonable time within which they might prosecute their claims and make their entries. — A sense of right and justice seems to have dictated this provision; and all the reasoning, founded on moral principle, is applicable with the same force to the limitation of real, as personal actions. In Call v. Hagger & al., 8 Mass. 423, an act of limitation was objected to, as being unconstitutional. The Court observe, — “ To extend this principle to acts for the “ limitations of suits at law, which, when enacted with discre- “ tion, and a reasonable time allowedfor the commencement of suits “ on existing demands, are wholesome and useful regulations, “ would be extravagant.” But in that case the Court did not allow the limitation to extend to actions on bonds, where the escape had taken place-before the passing the act, and a right of action had vested in the creditor.’ — Story J. in the before-mentioned case of Society, &c. v. Wheeler, says, — “ If the legis-- “ lature were to pass an act of limitations, by which alj actions “ upon past disseisins were to be barred, without any allowance “ of time for the commencement thereof in futuro, it would be “ difficult to support its constitutionality, for it would be com- “ pletely retrospective in its operation on vested rights.” In the case of Sturgis v. Crowninshield, 4 Wheat. 122, Marshall C, J. says, — “If in a State where six yeará may be pleaded in “ bar to an action of assumpsit, a law should pass, declaring: “ that contracts already in existence, not barred by the statute, “ should be construed to be within it, there could be little “ doubt of its unconstitutionally. So if a law should declare “ that contracts entered into, and reserving legal interest, “ should be usurious and void, either in whole or in part, it “ would impair the obligation of the contract, and would be “ clearly unconstitutional.” Without adducing any more authorities to this particular point, we would observe, that many of the cases and much of the reasoning, which we have applied to the section in question under the other view of it, are applicable to it as an act of limitation. .

The result of this investigation then is, that the section of the statute under review, so far as it is prospective, is liable to n,o, objéction; but so far as it is' retrospective, and has altered tin common law, it is unconstitutional, and cannot be carried into effect; because such operation would impair and destroy vested rights, and'deprive the owners of real estate of their titles thereto, by changing the principles and the nature of those facts, by means of which those titles had existed and been preserved to them in safety. We have before stated wherein the common law is changed by the provisions of the section' in question, viz., the well known distinction between a possession of lands under a claim of title on record, and a possession without any such claim is abolished; and Courts of law are authorized and required to extend to possessors in both cases, and in the same manner, the benefits of constructive possession, and attach to it the same legal consequences as to all concerned.

Let us now apply the principles, thus ascertained and established, to the present case.

It appears that the tenants have no title except what they have derived from Nathan Longfellow, who entered without any jpretence of right, as a mere possessor and wrong doer. In the year 1794, twenty-four years before the commencement of this action, Longfellow released all his right to the premises, on which he had entered, to his son Jacob, under whom the tenants claim by regular conveyances. It does not appear that the deed of release, or any of the subsequent conveyances, were ever registered. It is stated that the easterly half or part of the demanded premises, the part now in question, has never leen improved or cleared. It is true, it appears by the report that it was known that there were marked trees at the northeast and southeast corners of the lot demanded, which Longfellow claimed as the corners of his lot, And for more than thirty years before the commencement of this action there were marked trees on the lines running from the corners to the river, which he claimed as the lines of his lot, and ‘also across the head thereof; — that Longfellow cut and took away timber and wood on the back end, and any part of the lot, as he had occasion, and forbid others from lumbering and cutting on the lot; and paid all the taxes assessed on the lot; and that the said lines were openly known and recognized as the bounds of Longfellow’s lot, during said thirty years. Do these facts amount to a disseisin of the demandants aS to said easterly half of the lot ? .

With respect to the tai.es, it may be observed, that as théwest end of the lot was in actual possession, and under actual-improvement, the assessors were by law bound to assess Longfellow, and we must presume that they assessed him for his visible improvements. At best, however, such proof in general is of little importance, as of itself it proves no disseisin. Longfellow would have been assessed in the same manner; had he been a tenant of the demandants. It does not shew a possession to be adversary or exclusive. What facts are there in. the case shewing the possession to be exclusive ? The lines and bounds were claimed by Longfellow to he his; and this fact was openly known. He also cut wood and timber on any part of the lot, as he had occasion; and so in the case of Ken. Prop'rs v. Springer, the tenant’s father cut the grass on a meadow; a part of the premises demanded; in that case the lands had been surveyed and the bounds marked by spotted trees. Indeed the facts in that case are nearly the same as in the present, excepting that there, no part of the demanded premises had been enclosed by fences for thirty years; in the case before us, a part has been, and the title of the tenants in such part is secured to them as we have already decided. As we understand and have explained the case of Prop'rs v. Springer, it has not established, nor was it intended to establish any new principle. The objection of the tenant’s counsel bas been urged against that decision, on the ground that it had introduced and established a new principle. We consider that case as a strong authority in this, in favour of the demandants; marking clearly the distinctions to be observed between different kinds of possession, as under claim of title on record, and mere naked possessions. In the case before us, there is no proof of any fence, or natural obstruction to guard the easterly half of the’lot from incursion; no actual improvement and cultivation, notoriously marking the bounds of the tenant’s claim, and excluding all others ; no registered title or claim of title, shewing the extent of such claim, or the grounds on which it is placed, and operating as the assertion of right in opposition to all others; nor any thing but surveys, and lines, and cornel* bounds; with the exception of those acts of cutting timber and wood, which might be proved in the case of common trespasses. The before cited case of Jackson v. Schoonmaker, 2 Johns. 230. is Equally in point against the tenants; upon the evidence before us. It is there decided that even a possession fence, made by felling trees and lapping them one upon another around the lot, will not suffice to make out an adverse possession, when that is the only defence; but that there must be a su bstantial enclosure and real occupancy ; a pedis possessio, definite, positive, and notorious., to countervail a legal title. This case carries /he principle farther than that of Ken. Prop'rs v. Spnnger.

Upon principle and authority, we are therefore of opinion, that, in regard to the easterly half or part-of the demanded premises, the instructions of the Judge to the jury were incorrect, and of consequence, that the, vtrdict must be set aside, and a new trial granted.

We are aware that the opinion we have now delivered has been extended to an unusual length; but being aware also that it is a cause of much expectation, the decision of which involves' a constitutional question, and may be extensive in its influence in other cases, and to a wide extent; we have bestowed much attention in the examination of principles, and cautiously arrived at the result. It is always an unpleasant task for a judicial tribunal to pronounce an act of the legislature in part or iri whole unconstitutional. We agree with the Supreme Court of /he United States; in the case of Fletcher v. Peck, that “ the “ question whether a law be void for its repugnance to the con- “ stitution is, at all times, a question of much delicacy, which .“ ought seldom, if ever, to be decided in the affirmative, in a “ doubtful case. But the Court, when impelled by duty to “ render such a judgment, would be unworthy of its station, “ could it be unmindful of the obligation which that station im- “ pogea.”

We cannot presume that the legislature, which enacted the ,law, considered the section in question, as violating any constitutional principle, or in any manner transcending their powers. Be that .as it.may,..the oath of office, under which we conscientiously endeavour,to perform/iur duties, imposes upon us as solemn an .obligation .to .declare .an act of our legislature un constitutional, when, upon mature deliberation, we believe it to be so; as it does to give prompt and full effect to all constóteiioml laws, in the administration of justice.

. Verdict set aside arid a new trial granted„■