The tenant claims title to the demanded premises under one Hildreth, and at the trial offered evidence, tending to prove that the said Hildreth, in the year 1798, entered on the demanded premises, under a conveyance to him by metes and bounds, which, as it was contended, included the demanded premises ; that the deed of conveyance to him was duly re corded a few days after its date, and that Hildreth caused his lot, so purchased, to be surveyed, and that he made a lop-fence, as it is called, on his southerly line adjoining the land of the demandants’ ancestor, which was kept up several years and until after his death.
On this evidence, the chief justice was requested to instruct the jury that the entry of said Hildreth under said deed, and his subsequent claim and occupation, would in law amount to an actual disseizin of the demandants’ ancestor ; and that as the said Hildreth’s deed was recorded long before the deed to the demandants’ ancestor, less notorious occupation by him would operate as a disseizin, than would be necessary if his deed had not been recorded.
These instructions the chief justice refused to give, and he instructed the jury that the fact of the tenant’s deeds being recorded prior to the deeds under which the demandants claim, was wholly immaterial.
This instruction is unquestionably correct, according to the decision in Bates v. Norcross, 14 Pick. 224. The question on this point was fully discussed and satisfactorily decided, on principle and on the authorities, in that case. The only question therefore now to be decided is, whether the jury ought not to have been instructed, that the acts of possession of the tenant, and of those under whom he claims, were sufficient to constitute a disseizin. That these acts of possession, accompanied with a claim of title, would be sufficient to entitle the tenant to an action of trespass or ejectment against a stranger having no title or prior possession, we do not doubt; but we think it equally clear that such a possession does not by law operate as a disseizin of the legal owner. The acts of a wrongdoer must be construed strictly, and the owner is not to be barred of his right, *129by an adverse claim and possession, unless he forbears to assert his title for the time limited by the statute, after notice of such adverse possession, either express or implied. And such notice is not to be presumed by the court, though it may be found by the jury on proof of circumstances raising such a presumption. 7 Mass. 383. 15 Mass. 498. 5 Pick. 135. 6 Johns 197.
Now it appears, by the report of the case, that there was no evidence of any actual notice to the demandants’ ancestor of the existence of the fence, on which the tenant’s counsel so much relies ; and such a lop-fence, or possession fence, as it is sometimes termed, running as it did through woodland, we do not consider as sufficiently notorious, as indicating the limits of an adverse possession, to justify the jury in presuming that the demandants’ ancestor had notice of it. To make out an adverse possession in ejectment (as it was correctly decided in Jackson v. Schoonmaker, 2 Johns. 230,) the tenant must show a substantial inclosure, an actual occupancy, definite, positive, and notorious. It is not enough to make what is called a possession fence, merely by felling trees and lapping them one upon another round the land. And so it has been frequently and uniformly held in this Commonwealth.
We are of opinion that no such adverse possession was proved in the present case ; and that the court would not have been justified in instructing the jury according to the request of the tenant’s counsel.
Judgment on. the verdict.