We think the charge to the jury was erroneous. The parties were adjoining proprietors of lands, the plaintiffs owning on the east and the defendant on the west side of the dividing line. A stone wall three feet in thickness had for sixty years served as a divisional fence. The plaintiffs claimed to be the rightful owners of the whole wall, and the land on which it stood, up to the west side of the wall. In April, 1850, the defendants took down the west side of the wall, and set a barn near to the centre of it; and the plaintiffs brought this action of disseizin to vindicate their title and regain possession.
They introduced evidence to prove that the wall was not on the true line, but stood entirely on their own land, and that the true boundary line between the tracts of land was on the west side of the wall. The defendant thereupon, instead of denying the plaintiffs’ original ownership, or setting up á paramount rightful title in himself, undertook to show that he had acquired a title to the contioverted property by possession. And the court charged the jury that if the defendant and those under whom he claimed title had occupied the land on the west side of the wall up to the wall, supposing and believing the wall to be the dividing line between the lands in question, and had always treated the centre of the wall as the dividing line without objection, such occupancy would be presumptive evidence of the place of the true line between the lands; and that if such occupancy had been continued adversely for a period of fifteen years, the occupants all the time treating the land as their own, and denying the title of every other person, and the plaintiffs had acquiesced in such occupancy, *396then the defendant had acquired a title by possession to the centre of the wall.
Now it is to be observed, that the “ occupancy ” spoken of in the charge, is the occupancy of the defendant’s undisputed property on the west side of the wall, up to the wall; that by the defendants “ treating the centre of the wall as the dividing line,” nothing can be meant except his occupancy of his own land up to the wall, and his supposition and belief that the wall was the dividing line and that his title extended to the centre of it, because it is expressly stated in the motion that there was no evidence that the wall, or the land covered by it, or any part of it, was ever otherwise occupied by the defendant or those under whom he claimed, than as a divisional fence, until April, 1850, when he took down a part of it, as before mentioned. It is to be observed also, that there could have been no question regarding the plaintiffs’ acquiescence in the defendant’s claims to any part of the wall or the land on which it stood, because the motion shows that they had no knowledge of such claim ; no direct evidence of such knowledge being offered, and the fact of the defendant’s occupation up to the wall affording no ground for an inference that the plaintiffs knew that he claimed to the centre of it.
The simple question therefore is, whether by the mere adverse occupancy of the defendant’s land up to the wall, he supposing and believing that the line was in the centre of the wall, a title by possession to the centre'of the wall could be acquired. A title to land by possession is acquired under the operation of our statute of limitations. That statute provides, that “ no person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same shall first descend or accrue, and every person not entering as aforesaid, and his heirs, shall be entirely disabled to make such entry afterwards.” Rev. Stat., tit. 31, § 1. The statute, says Judge Swift, is construed to bar not only the right of entry but of action also, and to divest the former owner of his title, and vest it in him who is in actual possession at the end of fifteen years; so that though it is in terms a statute of limitations merely, yet it operates to transfer a title from one person to *397another. 1 Swift Dig., 162. But it is obvious that until the owner of land has been disseized and deprived of his possession he has no occasion to make an entry, and consequently can not lose his title by the operation of the statute. He must be disseized, ousted and turned out of possession before the statute can begin to operate on his rights. Margaret Podgers’ case, 9 Coke, 106, a. 3 Cruise Dig., 484. Thus a disseizin ripens into a good title by lapse of time, only when the disseizor has had an actual, open possession and use of the land in controversy, adversely to the title of the owner. 2 Greenl. Ev., § 557. No title by possession can be acquired unless the party has the actual use and occupation of the property, nor unless the owner of it has so lost his possession that he can maintain an action to regain it. 1 Swift Dig., 162. Proprietors of Kennebunk Purchase v. Springer, 4 Mass., 418. 2 Bouvier’s Institutes, § 2193. Brimmer v. Proprietors of Long Wharf, 5 Pick., 135. In the case at bar the defendant set up a title acquired by possession; and whether he had thus acquired such title was the only question presented to the court. He claimed no possession or actual use of any portion of the wall, or of the land on which it stood, prior to 1850. The motion states that “ the wall had served as a divisional fence,” but it was the west side of it, not the centre, that had so served the defendant, bounding and forming the limit of his actual occupancy. He had neither rebuilt the wall, repaired it, nor done any other act inconsistent with the plaintiffs’ uninterrupted possession, or with their entire control and dominion over it. His admitted and rightful occupancy of the adjoining land up to the wall, was an entirely different thing from that actual occupancy of the disputed property which was indispensable to the acquisition of a title to it by possession.
That he believed and claimed that his title extended to the centre of the wall is of no importance to this issue, so long as he did no overt act in the assertion or vindication of his claim, and so long as the plaintiffs’ possession remained undisturbed. No ouster, disseizin or dispossession of the plaintiffs could have been effected by the defendant’s claiming title or possession, *398whatever his own supposition or belief might be regarding it. And even if the plaintiffs had been apprised of the defendant’s claim, their own title could not have been affected by such claim, because, their possession being undisturbed thereby, they could have maintained no action on account of it.
It is to be constantly born in mind that the defense rested entirely on the claim of an acquisition of title to the controverted property by possession, which presupposes that the real original title was not in the defendant, or those under whom he claimed, but in the plaintiffs or some other person. The plaintiffs claimed that they had shown a title to the entire wall and the land on which it stood, and the defendant did not deny that claim. He only contended that the plaintiffs had been so long ousted of their possession of the property, and it had been so long in the adverse possession of himself and those under whom he claimed, that the plaintiffs had lost their right of entry and of action by lapse of time, and he had gained a title by adverse occupancy or possession. The suggestion in the charge therefore, that the defendant’s occupancy of his own land in the manner claimed would be presumptive evidence of the place of the true line between the lands, seems to have" had no application to the issue, and we think it was calculated to mislead the jury. The only legitimate inquiry for the jury was, whether the defendant, and those under whom he claimed, had, for the period of fifteen years, had the actual, open, adverse occupancy and possession of the controverted property, claiming it as their own, and actually excluding all other persons from its possession; and there was no presumption, either of law or of fact, that the property was out of the possession of its real owner, or in the adverse occupancy of the defendant or any other person.
The doctrine of adverse possession is to be taken strictly. An adverse possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. Jackson v. Sharp, 9 Johns., 167.
The instruction given to the jury, that, by the defendant’s occupancy of his own land up to the wall, in connection with *399his belief and claim of title to the centre of it, he could acquire a title to the controverted property beyond his actual occupancy, was erroneous, and a new trial should be granted.
In this opinion the other judges concurred.
New trial advised.