concurred in the result, and submitted the following views: —
I concur in the result, because I consider the case of The Proprietors of the Kennebec Purchase v. Laboree, 2 Maine, 281, as an authority directly in point, and as binding upon the Court. That opinion, evidently, is based upon the fact, that the long continued practice in Massachusetts and in this State has settled the. law here, and not upon the doctrines of-the common law as elsewhere understood. O. J. Mellen, in that case, admits, in effect, that the decision cannot be sustained on the established principles of the common law as understood in England, or in other States of the Union. I think that, upon the general doctrines and analogies of the common law, the presiding Judge was justified *455in giving the directions he did. I do not propose to discuss the question at any length, but to state one or two principles, well established.
The demandant shows a perfect legal title to the land he claims. "Why should he not recover possession of what' he owns in fee? The tenant says he should not recover it. He shows no title by deed, — but he says I have a better title, acquired by disseizin' of the true owner. The issue between the parties is not about present possession, but about the title to the premises. The tenant says he has acquired a title, — not by grant, or by l’ight, but by a long continued wrong. No one doubts that he may thus acquire a title, — or at least such a right as enables him to hold against the real owner. But how is such a right or title acquired? Not by mere possession. It must have been an open, notorious, exclusive and continued possession for twenty years. But this is not.enough. It must have been also adverse to-the title of the true owner. All the other requirements may exist and yet be entirely consistent with an acknowledged possession in another. Possession, however open, exclusive and continued, does not itself import that it was adverse. It may be under a lease verbal or written, or under a life estate, or under a contract to cultivate. Indeed, the law always presumes that every possession is lawful'and under some right. It does not assume that a man is attempting to steal his neighbor’s land, and that he entered upon it without right and holds it as a naked trespasser, and in wrong and adversely to a legal title. This is an affirmative fact to be proved by the tenant, as the foundation of the title, which he sets up.
But it is said the Court and jury may infer that the holding was exclusive, because it is open, and adverse, and continued. And this is the whole question in this case. If this be so, why was this element of adverse holding inserted in the definition. If it is enough to prove the other points, or, if they constitute such disseizin as may represent a perfect title, why not omit the other?
*456An opea and exclusive possession does not justify the presumption that it was also adverse. The presumption is decidedly the other way. How can a jury be justified in inferring the existence of a fact, which cannot necessarily or even fairly be deduced from the facts proved, — which facts, are, at least, as consistent with honest holding in subserviency to some title, as with the assumption that the holding was in wrong and adverse to the true owner ? Why should the true owner be obliged to explain the nature of the holding by his adversary? The tenant, as all agree, is bound to establish the adverse nature of his holding as the very essence of his claim of title. He must establish this as an affirmative fact, either by direct proof of claim in words or by acts from which such adverse holding is fairly established. I do not see how it can reasonably be inferred from mere possession, — however open or exclusive.
There is less reason for so doing since the change of the law, by which parties and persons interested are allowed to testify as to their acts and intentions. Ought a party to be enabled to make out a title or right by adverse seizin, by proving mere actual possession for twenty years, without any other evidence as to the nature and object of his entry and holding, whilst he sits by his counsel, and declines to be examined as a witness ? This, as I understand it, was the fact in the case at bar.