On Petition for a Rehearing.
Morris, C.The appellant files a petition for a rehearing in this case. Its counsel insist, with much apparent earnestness and sincerity, that the court erred in holding the third paragraph of the appellee’s answer to its cross complaint good.
If we assume, as perhaps we may, that the instrument executed by Bergen and wife to the appellant’s predecessor is sufficient in form to convey a strip of land fifty feet' in width off the west side of the land, afterwards conveyed by Bergen and wife to Oyler and Hamilton; that the appellant constructed a part of its road upon, fenced in, and continuously occupied a strip fifteen feet in width off the west side of said fifty-foot strip; that Bergen remained in the actual occupancy of the balance of the fifty-foot strip, being the land now in controversy, using and claiming it as his own; that while the land in controversy was thus occupied by Bergen, he conveyed to Oyler and Hamilton, by warranty deed and for a valuable consideration, all that part of the quarter section of which the fifty-foot strip was a part, lying east of the center line of the appellant’s road, without actual notice of the conveyance of the fifty-foot strip to the appellant, and that the conveyance to the appellant had never been recorded, the question is, and it is the only question discussed by the appellant, was the occupancy of the strip, fifteen feet in width, by the appellant, constructive notice to Oyler and Hamilton, *404under the circumstances stated, of its right to and deed for the fifty-foot strip ?
It is true, that actual, visible and exclusive possession is constructive notice of the rights of the occupant. The rule is well stated in the case of Noyes v. Hall, 97 U. S. 34. It has been so held in this and many other States. In the cases of Crassen v. Swoveland, 22 Ind. 427, Paul v. Connersville, etc., R. R. Co., 51 Ind. 527, and others referred to by the appellant, the same rule is asserted.
And it may be admitted, as held in the case of Bell v. Longworth, 6 Ind. 273, that, as a general rule, where one enters under color of title by deed and improves the land, he acquires, in law, actual possession to the extent of the boundaries contained in the deed. But, in. the very nature of things, this can only be the case where such possession is exclusive. The rule can not apply where, at the time the entry is made, a portion of the estate embraced by the deed is in the actual possession and use of another. Where the land is unoccupied, the party entering under a deed or writing may well be presumed to intend to take and hold the entire estate. No such presumption can arise, however, where a part of the estate is in the actual and apparently adverse possession of another, A mixed possession can not be exclusive, nor- operate as notice of an unrecorded deed, nor of the rights of one not in actual possession.
The precise question here involved has, so far as we have been able to find, arisen in but few reported cases.
Washburn, in speaking of the possession of one holding under an unrecorded deed, as notice of the contents of such deed, says: “ But where a vendor sold a part of his estate, and retained a part, and both he and his vendee .occupied the premises, it was held not to be a notice of the purchase. To have that effect, it must be exclusive, open, and notorious, such as enclosure, cultivation, erection of buildings, and the like.” Vol. 3, 4th ed., p. 318.
In the case of Ely v. Wilcox, 20 Wis. 551, it is said that *405“possession to be notice must be open, visible, exclusive and unambiguous.” The same was held in the case of Patten v. Moore, 32 N. H. 382. A mixed or ambiguous possession does not meet the requirements of the rule. Bell v. Twilight, 2 Foster, 500; Bush v. Golden, 17 Conn. 594.
In Billington v. Welsh, 5 Binney, 132 (6 Am. Dec. 406), it was held that where the defendant went into possession under a parol agreement for the purchase of a part of a tract of land, and erected a mill and out-buildings for his workmen, but the boundary was not defined, and there were buildings of the same kind on the unsold portion of the tract, which were used for like purposes by the vendor, so that the whole would strike the eye as one establishment, the defendant’s possession did not operate as notice to a purchaser at sheriff’s sale under an execution against the vendor.
In the case in hearing, Bergen was, at the time he conveyed to Oyler and Hamilton, in the actual possession of the land in dispute, had the apparent and recorded title to it, was using and cultivating the same as his own and as he was using his other land within the same enclosure, with nothing to mark or separate it from the farm sold and conveyed to Oyler and Hamilton, or to indicate that the appellant had any right to or interest in it,
In the case of Smith v. Yule, 31 Cal. 180, it was held that if the apparent possession of land is consistent with the title appearing of record, it is not the duty of the purchaser to make any enquiry concerning the title beyond what the record shows. It was further held, that if, at the time of the sale of land, the record title is in the vendor, and he is in possession, and another person is also in possession of a part of the premises, there is no presumption of title out of the vendor, and no enquiry need be made of the other person as to his right or title. The facts in the above case are not unlike those in the case before us.
In the case of Bennett v. Robinson, 27 Mich. 26, it was held that the possession of the grantor, long after the delivery and *406recording of his deed to a purchaser, justified the inference that he had obtained some right to or interest in the premises. The following cases will be found to support the cases above referred to, especially the case of Smith v. Yule: Dutton v. Warschauer, 21 Cal. 609; Fair v. Stevenot, 29 Cal. 486; Kendall v. Lawrence, 22 Pick. 540; Hewes v. Wiswell, 8 Greenl. 98; Butler v. Stevens, 26 Me. 484.
The cases referred to by the appellant do not relate to the question of a mixed possession. We think they do not meet the peculiar facts‘set up in the pleading demurred to, nor show that Oyler and Hamilton were not innocent purchasers. We know of nothing in the appellant's charter, or the law, which required it to procure or own a right of way 100 feet in width. It would have been lawful for it to have acquired from Bergen and used a strip of land thirty feet wide for its right of way. No inference can be drawn, therefore, from the fact that the appellant is a railroad company, as to its rights to or interest in the land in dispute. Its possession was notice of its rights to the land, which it had enclosed and occupied, but not to that which it had not enclosed nor actually occupied, but had left in the actual use, occupancy and apparent ownership of Bergen.
The appellant insists that the conclusion we have reached is opposed to the decision in this case when here before, 60 Ind. 383.’ The appellee had demurred to the counter-claim or cross complaint. The court held the counter-claim good. It is averred in the counter-claim that the appellant had continuously occupied all the land in dispute prior and up to and at the time that Oyler and Hamilton purchased. We think the counter-claim was good as held by the court. It did not appear by the counter-claim that Bergen was, at the time he conveyed to Oyler and Hamilton, in possession of any part of the strip of land conveyed to appellant. But the answer demurred to alleges that it was so in Bergen's possession, and that he used and claimed it as his own.
Per Curiam. — The petition is overruled.