(dissenting). There is nothing in
this case to show that the defendants ever had possession, either actual or constructive, of the' lands in controversy. Fitful acts of possession, such as cutting timber or grazing stock, do not constitute continuous actual possession so as to put the real owner on notice or to ripen into title by adverse possession. Scott v. Mills, 49 Ark. 266; Driver v. Martin, 68 Ark. 551; Connerly v. Dickinson, 81 Ark. 258; Earle Improvement Co. v. Chatfield, 81 Ark. 296. In the case last cited the court said: “The disconnected acts of cutting timber would indicate oft-repéated trespasses upon the land, but they were not sufficient, in cur opinion, to show such continuous and notorious occupation and domination over the land as would indicate to the true owner an unmistakable intention by another to own and exclusively appropriate the.land.”
Nor was there constructive possession by reason of the defendants being in actual possession of an adjoining tract of land under a deed which constituted color of title to both tracts. Under the doctrine announced by this court in several cases, beginning with the case of Haggart v. Rainey, 73 Ark. 344, there is no constructive possession for the reason, as stated by Judge Riddick in the ease of St. Louis, I. M. & S. Ry. Co. v. Moore, 83 Ark. 377, that “the possession of the tract is no notice to the owner of the other tract that the land is claimed adversely.” The majority say in their opinion that this doctrine does not apply to a case where the legal title' is in the State. I am unable to see why it would not apply if the statute .of limitations could run against the State under any circumstances, but, as the statute of limitations does not run against the State, I fail to see why, under those circumstances, the defendants could be said to have had possession so as to raise the presumption that the title had passed from the State.
If there is a presumption at all of a grant from the State, the only ground upon which it can be based is that the defendants have continuously paid taxes on the land under color of title for a long period of time. The land being wild and unoccupied, this would constitute adverse possession so as to ripen into title by limitation as against private owners, but, since the legal title remained in the State up to a very recent date, and since the statute of limitation does not run against the State, it can not successfully be pleaded against the State’s grantee within seven years of the date of the grant.
The three cases cited by the majority as supporting their conclusion that the presumption of a grant from the State is raised do not, in my opinion, support their views, as the facts of those cases are altogether different from the facts of the present case. In Garter v. Goodson, 114 Ark. 62, there was a confusion in the records of the State Land Commissioner, sufficient to raise a doubt whether or not the lands had been conveyed by the State, and this confusion was made the basis of the conclusion announced in that case that a presumption of grant would be indulged in favor of the occupant of the land. The same state of facts substantially existed in the case of State v. Taylor, and the decision was based on the same ground. In Wallace v. Hill, 135 Ark. 353, there was a right of redemption in the occupants, who were the former owners, and who held over after the sale of the land to the State for overdue taxes, and this court held that the continuous payment of taxes, coupled with possession, was sufficient to raise the presumption that the land had been redeemed through regular channels.
In the present case there is no evidence at all of any confusion in the records in the State Land Office. The undisputed evidence is that, according to those records, there had never been any grant by the State. Without actual possession of the land and without any evidence whatever of a grant, I do not think that the payment of taxes under color of title is sufficient to raise the presumption of the grant by the State in the face of a perfectly clear record which, fails to show any defects in the State’s title. It seems to me that under the circumstances of this case the following language of the late Justice Field in the case of Oaksmith’s Lessee v. Jotmston, 92 U. S. 343, very appropriately announces the only conclusion which ought to be reached on this subject:
“But in this country, at the present day, there can seldom he occasion to invoke the presumption of a grant from the government, except in cases of very ancient possessions running back to colonial days, as, since the commencement of the present century, a record has been preserved of all grants of the government, and of the various preliminary steps up to their issue; and provision is made by law for the introduction of copies of the record when the originals are lost.”Mr. Justice Smith concurs in this dissent.