The opinion of the court was delivered by
Barrett, J.The plaintiff must stand on his title — that on which he claims to be the owner of the land in dispute. His deed bounds him on the east contiguously to the land which Mrs. Lippitt claims that the deed to her husband conveyed to him, bounded on the west by the same line that bounds the plaintiff’s land on the east, viz.: “ then southerly on the edge of the pond to the northeast corner of John Eddy’s land.” That pond was in existence when the deeds defining said boundary were given. The deed to Lippitt gave him title to the pond — that is, to the line named. It gave him title to the land covered by the water, and to the edge of the pond as it then was. The going out of the dam and the sinking away of the water, as stated in the report, did not change the western boundary of what was covered by his deed, nor did it change the eastern boundary of plaintiff’s land as described and conveyed by said deed to him.
This is not the case of a boundary by a stream, which may change by gradual washings and deposits. In this case the territory is limited by a defined boundary, without regard to the contingent subsidence of the water constituting the pond, and thereby leaving the land dry. The pond was an artificial creation as distinguished from the natural flow of a running stream. Anri not only the terms of the description, but the nature and reason of the case evinced the intent to fix a defined boundary of land, and give ownership to that boundary on both sides of it.
The plaintiff has not title by his deed. Has he by adverse possession ? We think not. The water of the pond, while the pond was there, rendered needless any fencing on the part of either party. *468As the water receded, the defendant had no occasion to fence the land, — having no use for it, and leaving the receded water to do its office. The plaintiff did nothing but what he had been doing while the water was in the pond — viz., putting his cattle into his pasture contiguous to the water. As the water receded the cattle followed, for drink, shade, and cropping what might be in their way.
There was nothing to indicate to the defendant that plaintiff was asserting, or acting upon, a claim of right as against her, in reference to the swale, bushes, wild grass, &c., which succeeded the retirement of the water. As before said, the plaintiff did nothing but turn his cattle into his own pasture, and they wandered at “ their own sweet will ” on to the bottom of the old pond, without any act, or word on his part. If he had fenced it in, and put it to cultivation,-r-or if he had given out that he was occupying it, claiming to be the owner, so as to charge the defendant with knowledge of his claim, — if, indeed, his course in reference to it had been such as to indicate hostile claim, in his use of the land, he would have some ground for his claim of title by adverse possession. Instead of that being so, his occupancy was indicative of his understanding that it was permissive ; and every thing circumstantial indicates that the defendant regarded it in the same way, and he supposed she so regarded it.
Whether open occupancy operates notice to the other party that such occupancy is hostile, depends on the nature and circumstances of such occupancy. That subject is handled in the case of Plimpton v. Converse, 42 Vt. 712; Same v. Same, 44 Vt. 158, and what is held and said therein bears directly on the subject as it is involved in this case.
Mrs. Lippitt had no use for the land till she should want to cover it again with a pond, and had no occasion to give any attention to what was going on with it, by the plaintiff, or anybody else, and, least of all, would it indicate to her that the running of plaintiff’s cattle on'it that were feeding in his pasture was a warning to her that plaintiff was claiming to own the land, and not merely enjoying a tacit permission which he had by *469the fact that she did not fence him out, when she had no use for the land, and no occasion to do anything in respect to it, or even to take notice, in her summer visits, of the going upon it of the plaintiff’s cattle.
Judgment reversed, and judgment for defendant.