The opinion of the court was delivered by
Rbdeield, Ch. J.This is a case where there is considerable ground for debate in regard to the extent of the defendant’s pos-, session upon lot No. 136. But as the referee finds that the true corner was at the maple tree, and that the defendant’s deed was, in fact, only intended to convey the land to that corner, we must, we think, regard the constructive possession as limited to the actuul limits of the lot. The deed only described sixty acres in the north part of the lot. The lot, in fact, only extended to the line “ A C.” Whatever possession the defendant had beyond the actual limits of the lot, he must have obtained independent of his deed. His acts, so far as they can be, should be referred to blis deed. And, *655the deed, being upon record, was distinct notice to everybody that he did not claim beyond his deed.
The line from A to B being marked “ as and for the dividing line,” does not show that these parties so regarded it. There is nothing in the case to show that the defendant so regarded it, except his claiming up to it, at the east end, where it nearly coincided with the true line, and the difference might not, at first, have been noticed. And, taking all the facts proved, it does not seem very obvious that the plaintiff would be hound to regard, the defendant as ever claiming this spotted line as the true line. And, when it is considered that, within fifteen years, the defendant admitted the north-west corner was not established, and said “he wished to agree upon and establish the line and corner between ” him and the plaintiff’s grantor, we must conclude there is not enough in the case to show a marked and intelligible claim of possession and property in the land, as far as the spotted line.
We have no doubt one may have constructive possession of land, independent of paper title or claim, and without the literal possessio pedis upon any part of the land. But it should be marked by unmistakable indicia of claim, of use and right to control. A fence is always sufficient for this purpose. A mere marked line has not, of itself, been yet held sufficient. But in -the absence-of all paper title, probably it might be so made as to be equally indicative of claim of title, without any other monument. But where there is paper title, as in the present case, it requires very distinct occupancy to extend the possession beyond the limits described in the deed, inasmuch as the deed, while it is notice of claim to the extent of the boundaries therein set forth, is also a distinct disclaimer of any further pretensions. The owner of the adjacent lot is then put off his guard, as to any merely equivocal acts. He is naturally led to put the most favorable construction upon them as explained by the deed. In this view, we think there was nothing which amounted to constructive possession of the land in dispute.
Judgment affirmed.