Mason, J.,
delivered the opinion of this court.
This is an appeal in an action of ejectment. The plaintiff having shown a'perfect title upon paper, rested his case. The defendant places his.claim to title to the lands in controversy, upon1 the evidence of possession set out in the record, and relied upon' under the act of 1852, chap. 177, sec. 2. Our first duty then is, to ascertain the meaning and legal effect of this section. The provision in question is, “actual enclosure shall not be necessary to prove possession^ but acts of user and ownership other than enclosure, may be given in evidence to the jury to prove possession.”
It is clearly not within the scope of the legislative power, to give to a law the effect of taking from one man his property and giving it to another, by any new rule of tenure, retroactive in its character. Therefore the legislature • could not say, by a retroactive act, that the mere possession of a tort feasor, without actual enclosures, could divest the real owner' of his title, and the reason is, that the law having been different, the real owner relied upon it as his protection, and took no steps, as he might otherwise have done, to defeat a result which could not have been foreseen under the law, as it stood previous to the new rule. If a party should permit another to occupy his land by enclosures, under an adverse claim, for more than twenty years, his title is gone. This results, because the law announces, that every man holds his land subject to have his title defeated in the manner indicated, and if he does not gue~d [145]*145against such a contingency it is his own fault. On the other hand, the law lias been5 previous to the act of 1852j that occupation of land by a wrong doer, without enclosures, would have no effect upon the title of the real owner, and hence the law imposed upon the latter no obligation to defeat such wrongful possession in order to protect his rights, as it did in the case of possession accompanied by enclosures. Hence, as we have said, it was not in the power of the legislature to change this rule of law, so far as to give it a retroactive operation, because it would virtually be taking the land of one man, held by a good legal title, and giving it to another, who the law has said had none.
Notwithstanding the broad language used, we do not understand this court as intending to go further, in the casé of Warner vs. Hardy, 6 Md. Rep., 525, tha: That was a question of possession uh the bearing on this point, of the act, wj slitution, was not raised.
It is equally clear that it was With! lature, to alter and remodel the rulá dies, to which parties claiming title might resort, and therefore a law would be constitutional which merely declared that, evidence which would be sufficient to support a claim to title in equity, might be made availing for the same purpose at law. Hence it follows, that if the defendant in this case has show‘n a claim to this land which equity would recognise and enforce, the legislature might properly say, that the same evidence might be used in an ejectment, and that Upon such a claim or foundation shch acts of possession as those which are enumerated in the act of 1852, might be relied upon to support title. The casé then resolves itself into these two questions, namely, 1st, Has the defendant .proved a sufficient possession to gratify the requirements of the law generally, and especially of the act of 1852; and 2nd, Has he shown such an equitable claim, or color of title, to the land, as to support the acts of possession, as now set up and relied on as giving title? eme>f land;
The defendants’ case mainly rests upon the evidence of Rawl[146]*146ings. While we admit that this witness, from his relations to the case, does not occupy a favorable position before this court, appearing as he does to prove his own claim, still as there are no legal or technical objections to his competency, we must treat him as a good witness, and his evidence as entitled to credit.
After having stated the claim of title under which he alleges to have gone into the possession of this lot, he says, that in 1831,1832 or 1833, “he took possession of the two lots and held them up to the time he sold them to Armstrong,” which was on the 29th of March 1850. Possession being' a question of law to be determined by the court, upon the facts in the cause, and that being the very point at issue in this action, it was not competent for the witness to assume to decide it by stating that he took possession, &c. He should have stated the acts which he did, and which he supposed amounted in law to taking possession, and permitted the court to pass upon them. This statement, therefore, was not evidence to go to the jury. The subsequent testimony of the same witness, upon his cross-examination, as to the manner-in which he took possession, is not subject, it is true, to the same objection, still it is insufficient to show such possession as was contemplated by the act of 1852.
It consisted simply in offering to sell the lots, going upon and walking over them, and locking up the house and taking away the key. Independent therefore of the testimony of Rawlings, we are to ascertain whether there is sufficient evidence in the record, to show an adverse possession for upwards of twenty years, consisting of “acts of user and ownership?” The additional evidence upon this point, shows occasional cutting of timber from the lot, by permission of the alleged owner, his assertion of ownership of the property, and that the lots were known in the neighborhood as Rawlings’ property. Upon this last point, however, the evidence is contradictory, for some oi .the witnesses in the neighborhood affirmed, that the lot in question was known as Thistle’s lot.
As the act of 1852 is in contravention of the common law, we are not disposed to give it a very liberal construction. Possession thereforfe claimed under it, must be proved with clear[147]*147ness and precision. It must cover the full period of twenty-years, it must be adverse, exclusive and unbroken, and the ads of user and ownership, relied on, must be such as will comport with the character of the claim or title of him, who asserts ownership against all the world, and should not consist of acts, merely, which might be done by any and all persons with impunity, in common with him who claims to be the real owner. The witness Winebrenner says, for example, “that it was usual about there, if a man wanted a stick of timber to go upon any man’s land and cut it.” This was no doubt true, as to the land in question, as it was rough, mountainous land, and .in timber, and, therefore, the mere cutting of wood, under such circumstances, where it was of little or no value, can hardly be regarded as an act peculiar to the ownership of the property. To give permission to do that, which most persons in the neighborhood assumed to do without permission, cannot be regarded as such an act of exclusive ownership as was contemplated by the act of 1852. Neither do we regard the mere assertion of a claim to the land, as an ad of user and ownership within the statute. Indeed we can discover no acts on the pari, of Rawlings, in regard to this property, running over the whole twenty years, that were not perfectly consistent with acts that might have been committed by any person in the neighborhood, with the same impunity, except the single circumstance of having locked up the house and taken away the key.
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Mason, J.,
delivered the opinion of this court.
This is an appeal in an action of ejectment. The plaintiff having shown a'perfect title upon paper, rested his case. The defendant places his.claim to title to the lands in controversy, upon1 the evidence of possession set out in the record, and relied upon' under the act of 1852, chap. 177, sec. 2. Our first duty then is, to ascertain the meaning and legal effect of this section. The provision in question is, “actual enclosure shall not be necessary to prove possession^ but acts of user and ownership other than enclosure, may be given in evidence to the jury to prove possession.”
It is clearly not within the scope of the legislative power, to give to a law the effect of taking from one man his property and giving it to another, by any new rule of tenure, retroactive in its character. Therefore the legislature • could not say, by a retroactive act, that the mere possession of a tort feasor, without actual enclosures, could divest the real owner' of his title, and the reason is, that the law having been different, the real owner relied upon it as his protection, and took no steps, as he might otherwise have done, to defeat a result which could not have been foreseen under the law, as it stood previous to the new rule. If a party should permit another to occupy his land by enclosures, under an adverse claim, for more than twenty years, his title is gone. This results, because the law announces, that every man holds his land subject to have his title defeated in the manner indicated, and if he does not gue~d [145]*145against such a contingency it is his own fault. On the other hand, the law lias been5 previous to the act of 1852j that occupation of land by a wrong doer, without enclosures, would have no effect upon the title of the real owner, and hence the law imposed upon the latter no obligation to defeat such wrongful possession in order to protect his rights, as it did in the case of possession accompanied by enclosures. Hence, as we have said, it was not in the power of the legislature to change this rule of law, so far as to give it a retroactive operation, because it would virtually be taking the land of one man, held by a good legal title, and giving it to another, who the law has said had none.
Notwithstanding the broad language used, we do not understand this court as intending to go further, in the casé of Warner vs. Hardy, 6 Md. Rep., 525, tha: That was a question of possession uh the bearing on this point, of the act, wj slitution, was not raised.
It is equally clear that it was With! lature, to alter and remodel the rulá dies, to which parties claiming title might resort, and therefore a law would be constitutional which merely declared that, evidence which would be sufficient to support a claim to title in equity, might be made availing for the same purpose at law. Hence it follows, that if the defendant in this case has show‘n a claim to this land which equity would recognise and enforce, the legislature might properly say, that the same evidence might be used in an ejectment, and that Upon such a claim or foundation shch acts of possession as those which are enumerated in the act of 1852, might be relied upon to support title. The casé then resolves itself into these two questions, namely, 1st, Has the defendant .proved a sufficient possession to gratify the requirements of the law generally, and especially of the act of 1852; and 2nd, Has he shown such an equitable claim, or color of title, to the land, as to support the acts of possession, as now set up and relied on as giving title? eme>f land;
The defendants’ case mainly rests upon the evidence of Rawl[146]*146ings. While we admit that this witness, from his relations to the case, does not occupy a favorable position before this court, appearing as he does to prove his own claim, still as there are no legal or technical objections to his competency, we must treat him as a good witness, and his evidence as entitled to credit.
After having stated the claim of title under which he alleges to have gone into the possession of this lot, he says, that in 1831,1832 or 1833, “he took possession of the two lots and held them up to the time he sold them to Armstrong,” which was on the 29th of March 1850. Possession being' a question of law to be determined by the court, upon the facts in the cause, and that being the very point at issue in this action, it was not competent for the witness to assume to decide it by stating that he took possession, &c. He should have stated the acts which he did, and which he supposed amounted in law to taking possession, and permitted the court to pass upon them. This statement, therefore, was not evidence to go to the jury. The subsequent testimony of the same witness, upon his cross-examination, as to the manner-in which he took possession, is not subject, it is true, to the same objection, still it is insufficient to show such possession as was contemplated by the act of 1852.
It consisted simply in offering to sell the lots, going upon and walking over them, and locking up the house and taking away the key. Independent therefore of the testimony of Rawlings, we are to ascertain whether there is sufficient evidence in the record, to show an adverse possession for upwards of twenty years, consisting of “acts of user and ownership?” The additional evidence upon this point, shows occasional cutting of timber from the lot, by permission of the alleged owner, his assertion of ownership of the property, and that the lots were known in the neighborhood as Rawlings’ property. Upon this last point, however, the evidence is contradictory, for some oi .the witnesses in the neighborhood affirmed, that the lot in question was known as Thistle’s lot.
As the act of 1852 is in contravention of the common law, we are not disposed to give it a very liberal construction. Possession thereforfe claimed under it, must be proved with clear[147]*147ness and precision. It must cover the full period of twenty-years, it must be adverse, exclusive and unbroken, and the ads of user and ownership, relied on, must be such as will comport with the character of the claim or title of him, who asserts ownership against all the world, and should not consist of acts, merely, which might be done by any and all persons with impunity, in common with him who claims to be the real owner. The witness Winebrenner says, for example, “that it was usual about there, if a man wanted a stick of timber to go upon any man’s land and cut it.” This was no doubt true, as to the land in question, as it was rough, mountainous land, and .in timber, and, therefore, the mere cutting of wood, under such circumstances, where it was of little or no value, can hardly be regarded as an act peculiar to the ownership of the property. To give permission to do that, which most persons in the neighborhood assumed to do without permission, cannot be regarded as such an act of exclusive ownership as was contemplated by the act of 1852. Neither do we regard the mere assertion of a claim to the land, as an ad of user and ownership within the statute. Indeed we can discover no acts on the pari, of Rawlings, in regard to this property, running over the whole twenty years, that were not perfectly consistent with acts that might have been committed by any person in the neighborhood, with the same impunity, except the single circumstance of having locked up the house and taken away the key. This would have been unquestionably an act of ownership, and one of great weight, if there had been no question as to whether or not the lines of the lot embraced, in fact, the house. But we find this disputed, and the house actually claimed by, and the tenants afterwards paying rent to, the adjoining owner. In this way the force of the circumstance of locking the door is much weakened, if not entirely destroyed. When we remember that one of the ingredients or elements of title by adverse possession is, the hostile invasion of the rights of the real owner, we cannot discover, as the house was claimed by both Thistle and Winebrenner, whose rights were intended to be invaded by this act of locking the door.
It is not pretended that any one was put in actual possession, [148]*148to represent Rawlings, prior to 1835, when Klink, it is alleged, was placed in the house as Rawlings’ tenant of the whole premises. Conceding that the possession was perfect by reason of that act, and continued unbroken, it was still not sufficient, in point of time, as twenty years had not elapsed when this suit was instituted.
Having determined that the acts of Rawlings prior 1835, were not sufficient to amount to possession, under the act of 1852, we are relieved from the necessity of passing any opinion upon the question, whether Rawling’s claim or title to the land was sufficient to support acts of user and ownership, and to rescue him from the character of a mere tort feaser: in other words, whether he had an equitable or colorable title?
The only remaining point is, the sufficiency of the plaintiff’s prayer. The court being under no obligation to suggest prayers or instructions to counsel, might well have yejected the plaintiffs’ prayer, upon the ground alone of its having been too general, and if appealed from, whatever merits might have been discovered in his case, this court would have been confined to the questioyi of the sufficiency of the prayer, and constrained to affirm the ruling thereon. Upon this subject, this court will in future adhere to the law, as announced in the cases of Tyson vs. Shueey, 5 Md. Rep., 540, and Hatton vs. McClish, 6 Do., 407. But the court did not confine, itself to file mere rejection of the prayer, but pyoceeded to volunteer an instruction, which is not otfiy usual, but eminently proper, embracing its views of the law, and from this an appeal was also taken. Tfie questions which we' have discussed in the preceding part of this opinion, arise out of the instructions given by the court, which, as we have endeavored to show, were erroneous.
Judgment reversed and procedendo awarded.
In the case of George P. Thistle and others, vs. Francis Hammers, which was an ejectment by the same plaintiffs for lot No. 3980, the facts of which. are substantially the same as in the preceding case, and was argued by the same counsel^ Mason J., delivered the opinion of this epuyt,
[149]*149The questions involved upon this appeal are, in all material respects, similar to those decided heretofore in the case of Thistle vs. Frostburg Coal Company, and for the reasons assigned in the opinion filed in that case we reverse this judgment.