The defendant, Brown, is the owner of a warrant and survey, on which there once was a house, and on which there still is cleared land, that has been constantly kept in cultivation by the defendant or his predecessor, the warrantee. This survey is laid across several tracts on which there had not been- either residence or clearing till twenty-one years had elapsed from the defendant’s actual possession of a part of his survey; and why shall he not' be deemed to have been in the constructive. and exclusive possession of the whole of it? The argument for the plaintiff has been, that as the defendant paid no taxes on his warrant, but on the contrary suffered the plaintiff to pay for it on his own warrants, there was neither an assertion of ouster, on the one *294side, nor a confession of it on the other. But what is the payment or non-payment as an ingredient in a case like the present ? -It is true that where a settler on a surveyed tract enters with a view to hold by the lines of the survey, and claims to be the colourable owner of the title, payment of taxes is powerful evidence that his constructive possession is co-extensive with his claim. In other words, it is evidence that he claims by colour of title. On the other hand, the omission of the true owner to pay, or at least tender, the taxes assessed on his tract, knowing that his character of owner has been usurped by an intruder, is powerful evidence that he has abandoned the possession or submitted to an elective disseisin. But where, as here, there are separate but conflicting warrants and surveys, and each owner claims by his own title, payment or non-payment of his tax assessed separately on it is immaterial to the question of constructive possession. There is double taxation of the part included in the interference; and it is immaterial which of the two owners first pays his own tax upon it, or whether any thing has been paid at all; and the reason is, that payment of taxes does hot constitute exclusive possession, though, as we have said, it may in some cases be evidence of it. It does not appear that the defendant’s warrant had ever been assessed, and the fact, probably, is that it had not; but that was a matter exclusively between him and the commissioners of the county. He certainly was not bound to pay the plaintiff’s taxes on Ms seven or eight tracts in order to assert his exclusive possession of certain parts of them. The case therefore stands as it would have stood had taxes been paid by both parties, or by neither; and the result is, that the owners of the defendant’s warrant have had exclusive possession for a period long enough to give effect to the statute of limitations.
Judgment affirmed.