The opinion of the court was delivered, January 7th 1868, by
Thompson, C. J.The learned judge charged the jury peremptorily that the defendants, the plaintiffs in error, had failed to make out a defence, under the Statute of Limitations, against the plaintiff’s right to recover. If any essential element in such a defence were wanting, it was proper so to charge, as we have more than once held: 7 Casey 120; 10 Id. 304.
The assignment of error to this charge was not on account of the rule, but upon a supposed error as to the facts. Wherein the error consisted in this particular I have not been able to see. To make this manifest, if it existed, was a duty on the plaintiffs in error, but they have failed to do so. The adverse, notorious, hostile and continued possession by the defendants, or others under whom they claim, for the period necessary to give title under the statute, does not appear, so far as we can discover. Nor does it appear that the testimony on these points was of that conclusive and convincing character which demanded its submission to the jury.
Charles Campbell’s warrant was located in 1793, a year before that of the Holland Company, and we think its location on the .ground is not.to be disputed. That the Holland Company so regarded it, is evidenced by their general map or draft of the company land, which we may say here, we think was proper evidence'; not only because it was the map or draft in use by the company under whom the defendants claim, but because, being ancient and long in use, it was evidence of boundary upon the principle of an admission by the company. Such maps are always receivable in questions of location and boundary like the present. This being the situation of the Campbell tract, in order to hold the whole, there should have been an entry and residence, or cultivation without residence, claiming the whole; or if a part only were intended to be claimed through cultivation without residence, then there should have been some designation of boundary in order, to hold more than the portion actually cultivated and enclosed. Nothing of this is so apparent in the testimony, as to demonstrate error in the charge of the learned judge. Indeed it seems to us there was an entire failure to show this. We may be in error as to this : if we are, it is owing to the difficulty in comprehending the bearing of the testimony, as it is presented, but we think we are not. If an adverse possession was commenced within the lines of the Campbell survey by the defendants or either of them, or by either of the persons through whom they claim, it was not shown to have been continuously kept up for the requisite number of years to make title under the statute, so *100far as we can discover. We think, upon the whole, this assignment of error is not sustained.
2. The 2d assignment of error upon the admission in evidence of the map already referred to in the possession of the agents of the Holland Company, or perhaps rather in the hands of its successors now, has been sufficiently noticed. There was no error in that.
3. The 3d error is to the rejection of the Robert Hamilton article of agreement; but we have not been shown wherein the defendants were prejudiced by it. Indeed I have not been able to discover any connection between an entry under that agreement and the claim of the defendants below. The land embraced by it lies north of the Mahoning, while that claimed by the defendants lies south, if we understand the testimony. If it Avas meant by the offer to show an entry under color of title upon the Campbell tract, this might be all very well, but the rejection of the article did no harm unless it had been proposed to be shown that possession had been taken under it, and maintained adversely and uninterruptedly for twenty-one years, and that it enured in some way to the benefit of the defendants. We cannot see that this appeared, and hence we discover no error in this particular. Whether we have been fortunate enough to meet the point intended to be presented in this case I cannot confidently say. If we have not, it should be attributed to the want of a clear presentation of the facts in the case. Seeing no error,
The judgment is affirmed.