(dissenting):
This action grows out of a disputed boundary- line which, when correctly located, is the dividing line between plaintiff and defendant; there is no interlock. Plaintiff claims under a deed from G. D. Camden, and another, dated March 1, 1885, as color of title, and proved possession thereunder for a period of more than 10 years, but did not prove that he had paid taxes thereon for 5 years. Defendant claims under .a deed made by George J. Arnold, dated February 4, 1890, as color of. title, and is now in possession of the disputed land. No grant from the commonwealth to any one for the land was shown; neither do the parties claim title from a common source.
I assume the following legal propositions to be so well established in Virginia and in West Virginia by judicial determination that their correctness will not be denied, viz:
(1). That plaintiff must prove, prima facie, good title to the estate which he claims in the land before he can recover.
(2). That the plea of “not guilty” casts the whole burden upon plaintiff to prove his title.
(3). That, 'when defendant is in peaceable possession, no defense is necessary to defeat recovery until plaintiff has proven title in himself, prima facie good.
(4). That, in Virginia and West Virginia, since the establishment of the United States Government, all titles to land, not theretofore granted, have their origin in the state, the only source of title.
An application of these fundamental principles to the facts in the present case would reverse the judgment of the lower *96court. The state had never parted with its title, because the statute of limitations does not run against it so as to defeat its title to waste and unappropriated lands. Shanks v. Lancaster, 11 Grat. 110; Levasser v. Washburne, 11 Grat. 572; Adams v. Alkire, 20 W. Va. 480; Hall v. Webb, 21 W. Va. 318; Witten v. St. Glair, 27 W. Va. 762; State v. Jackson, 56 W. Va. 558; Seekright v. Lawson, 8 Leigh 458. See also opinion of Judge PoffeNBARGER in Lewis v. Yates, 62 W. Va. at pages 594-595. Consequently it was necessary for plaintiff to prove payment of taxes/ in addition to proving possession, in order to obtain the state’s title under section 3, Art. XIII of the Constitution.
If the statute of limitations applied in favor of one in possession of the state’s land, who failed to pay taxes, it would not only be inconsistent 'with section 3, Art. XIII of the West Yirginia Constitution, but would also defeat the operation of the forfeiture laws .made in pursuance thereof. For example, suppose D. has been in possession under color for 15 years or more, but has paid no taxes for any five of those years, End is sued in ejectment by P. who has never been in possession, but who claims under a deed from the commissioner of school lands, obtained after D. had been on the land for 10 years, and who has paid all the taxes since the date of his deed, can there be any doubt of P’s right to recover? If D’s possession alone could defeat P’s recovery it would nullify section 3 of Art. XIII of the Constitution and prevent the transfer of the state’s title to the one who had complied with the constitutional requirements, and would invest title in a person who had not complied with the constitution. Would the law aid D’s possession by presuming a grant to have issued to him' older than P’s title? I think clearly not; and even if such presumption were allowed it could not help D’s situation, unless he also proved that he had paid taxes. Because possession without payment of taxes will not prevent forfeiture; and if possession alone will not prevent forfeiture, pray, how can it create title ? Title thus attempted to be created would die before its birth. Now, if D’s possession, without payment of taxes, is not a good defense against P’s action, how could D maintain an action of ejectment upon-such possession? If it is not a good defense, surely it can not be a good title; and to hold it such would, in the case supposed, be so revolutionary as to make his *97condition as plaintiff better than it would be if be were defendant. Where plaintiff claims by possession, under color, or claim, of title only, and it does not appear that the state has parted with its title to the land, either by grant prior to the formation of this State, or by sale and conveyance in the manner provided for the disposition of unappropriated lands, since state grants were abolished, he must prove more than his mere color and possession under it for 10 years. He must also prove payment of taxes for 5 years. If he proves payment of taxes for 5 years the Constitution divests the state of its title and invests it in such claimant. This question was expressly decided in Witten v. St. Glair, 27 W. Va. 762. The opinion.of the Court in that case, written with great care by. Judge SNYDER, is clear, logical and cogent, and has ever since, until now, been understood ns correctly stating the law. I do not find that any other case, founded on a similar state of facts, has since then been before this Court for decision until the present one. That case has never, until now, been overruled either expressly or by implication. But, on the contrary, it has been recognized as law', and has been cited with approval in many later cases, viz: by Judge WarreN Mileer, in Ronk v. Higginbotham, 54 W. Va. 142, and in Chapman v. Goal & Coke Co., Id. 201; by Judge PoeeeNbarger, in Summerfield v. White, 54 W. Va. 320, where he says: “The general-rule is, that the plaintiff must recover on the strength of his own title. He must make out a perfect .title showing a grant from the State.” And cites Witten v. St. Glair, and other authorities, in support of the point; and on page 321 of the opinion he quotes approvingly from 10 A. & E. E. L. (2d Ed.) 481, the following: “No length of chain, of paper title which does not reach the sovereignty of the soil is sufficient of itself to constitute prima facie evidence of title,” which I think is unquestionably law, at least in Virginia and West Virginia. On the same page of the opinion Judge Poe-eeNbarger says that this general rule is subject to some qualifications, which I admit to be true, but he again cites Witten v. St. Clair, as authority for the exceptions. It is unnecessary to notice these exceptions; they have no application in the present case.
If plaintiff claims by paper title he must trace it back to the state’s grant, to the source of title; and if he claims under *98possessory title I assert that be must also connect himself with the state’s title by proof of such facts as will show that the state has been divested of its title. The state is no less the fountain of title in one instance than it is in the other, and the burden on plaintiff to prove that his title comes from the only source of title, is as great in one case as it is ini the other. He must recover on the strength of his own title. Low v. Settle, 32 W. Va. 600. The doctrine announced in Witten v. St. Glair was again approved, inferentially at least; in the later case of State v. Jackson, 56 W. Va. 558. In the opinion of the Court in that case, written by Judge BRANNON, pages 574-575, it is said: “It is incumbent on one seeking to take the benefit of the forfeiture of another’s land under any one of the three classes provided for in Article XIII, section 3, of the Constitution, to establish facts which will bring him within one of those classes. He holds the affirmative; he is claiming title; he claims a grant created by the Constitution, and must prove the facts to give him that grant or transfer. It is claimed that the Jackson-Harrison title took the benefit of the forfeiture of the Lándsburg land under the second and third class specified in the Constitution. Under either class the claimant must prove payment of taxes for five years.” I think this is a correct statement of the law; it is what I contend should have been proved in the present case. It makes no difference whether the title claimed by plaintiff is one. that the state had acquired by forfeiture, or one that had never left the state; section 3, Art. XIII, applies in either case; it includes “waste and. unappropriated,” as well as forfeited, lands; and it requires proof of payment of taxes, as an element of title, by any one of the three classes of persons to whom this “constitutional grant” is given. Without payment of taxes title does not leave the state, and therefore can not vest in the claimant.
If the statute of limitations does- not run against the state, it necessarily follows that it does not run in favor of the claimant until the state has parted with its title. The first point of the syllabus in Hall v. Webb, 21 W. Va. 318, is as follows: “The statute of limitations does not commence to run in favor of an occupant of land, while the title thereto is vested in the State. But the statute does commence to run in favor of such occupant against the grantee of the State from the date of the grant-of *99the land so occupied.” • This doctrine was also announced in Adams v. Alkire, 20 W. Va. 580; Levasser v. Washburne, 11 Grat. 572. I do not deny that, under certain circumstances, possession for the statutory period will not only defeat a recovery in ejectment, but will also operate to invest the party in possession with the legal title upon which he can recover in ejectment if he should thereafter be ousted. But this is true only when it is shown, either that the state had parted with its title to the land in question, or that the parties claim from a common source, or that defendant is an unlawful trespasser. Because, the state being the real owner of the land all the time' the claimant is in possession, and the statute of limitations not running against the State,' it is not disseized by the possession of the claimant. As long as the state holds the title there can be no adverse possession, because there is no one against whom it can’ run. Consequently such possession counts nothing in favor of the claimant; until the state has parted with its title, the claimant is no more than a “squatter.”
An examination of our decisions will show that, in those cases wherein a plaintiff has been permitted to recover upon a pos-sessory title, without proof of payment of taxes, it appeared, either that the state had parted with its title to the land in controversy, or that the parties claimed title from a common source, in which latter event the defendant was estopped to deny plaintiffs title, for by denying plaintiff’s title' he would be denying his own.
It is admitted that defendant could have defeated plaintiff’s action by proving that the land had been omitted from the land books and had not been taxed for five successive years. But why the necessity of proving this, when it does not appear that the state had ever parted with its title?- Such defense is only necessary to show a forfeiture of plaintiff’s title to the state, and/how can there be a forfeiture of a title never acquired? ■ To hold that it is necessary for defendant to establish, as a'defense, that plaintiff’s title has been forfeited to the state, before plaintiff has proved that the state had parted with the title, is a contradiction in terms.
The well established rule of law, subject to the exceptions above pointed out, prevailing in'this state and in Virginia, which requires plaintiff to prove a good and sufficient title and a' right *100to the possession, before he can recover in ejectment, I understand to mean this, that he must prove a title in himself prima facie good as against the state.; not necessarily that it is absolutely good at the timie of his action, for'there may have been a forfeiture; and. if. he proves that his title is prima fade good as against the state, he can recover, unless the defendant proves a better title, either in himself, or outstanding in another person, or that plaintiff’s title has returned to the state by forfeiture. This is necessarily true, beause the state is the fountain of title.
I do not suppose any one will contend that, if the state had instituted proceedings to sell the land in controversy, as school land, it would not have been necessary for Eiffie to prove payment of taxes in order to defeat the state. By what rule of practice then is he.required to prove more in one instance as defendant, in- order to show title against the state, than in the other, as plaintiff, to show title against this defendant? In such a proceeding by the state, if he failed to prove payment of taxes, he would not have so much as a right to redeem, because the land had never been his, and there could be no redemption of a thing never owned. The state could sell the land and would be entitled to all the proceeds, and the purchaser would become entitled of the land. If the claimant is not entitled of the land in the one case, how can it be reasonably said that he is entitled in. the other ? If it is necessary to pay taxes in order to get a title to the land, it would certainly seem to follow that' it is necessary to prove payment of taxes in order to establish title.
The majority of the Court are of opinion that proof that the state had parted with its title is dispensed with, by a presump"tion that the state had granted the land, arising from lapse of time. I think this view is erroneous for two reasons: (.1) it would reverse the rule of practice in this state, which requires plaintiff to prove title; (2) it assumes that possession under color, or claim, of title, is adversary possession, whereas, as I have endeavored to show that, agreeable to the repeated decisions of this Court, and of the courts of Virginia, possession, however long continued, can not be adversary possession, either in favor of the claimant, or against the state unless, and until, the state has parted with its title; therefore, it becomes necessary to prove that the state has parted with its title in order to mark *101tbe beginning of tbe adversary possession. If possession is not adversary to tbe true owner it is not adversary possession at all; this is axiomatic.
But, whatever may be tbe law in other jurisdictions concerning the presumption of a state grant in favor of one who has had possession of land for a long period of time, such law has no application in our jurisprudence in favor of a plaintiff in ejectment, for the following reasons, viz: (1) The burden of proof is on plaintiff to prove his title; no material fact essential to prove it can be presumed. (2) A material fact will not generally be presumed which can be easily proved. (3) The law requires the best evidence, when it can be had. (4) A fact will not be presumed in favor of a party who is in possession of other facts which are better evidence of his claim, and which, if proved, would render the presumption unnecessary.
Now, applying these principles to the present ease, the title to the land was the matter, in question; it was not necessary to presume a grant in order to support plaintiff’s title, because it would, at most, have shown him to have a title, only prima facie good; it was easy for plaintiff to prove payment of taxes, if he had in fact paid them; this was a mlatter within his own knowledge, and if he had proved payment of taxes it would have rendered the presumption of a grant unnecessary and, at the same time, would have established in plaintiff an indefeasible title under section 3, Art. XIII of the Constitution. On the other hand, if plaintiff did not in fact pay the taxes for five years, the land was not his, the title was not in him, and he should not recover it. Again, if it be proper to presume a material fact to make out plaintiff’s title, why not presume that he paid the taxes, that a man who owed to his state this duty had discharged it? This presumption would seem to me to be just as reasonable as the other, and quite as good law, if it had not been heretofore decided by this court that, “there is no presumption of payment of taxes arising simply from the duty of payment.” State v. Jackson, 56 W. Va. 560.
All of the West Virginia cases which appear to hold that possession of land under color, or claim, of title for a period of ten years, will vest title in the claimant upon which he may recover in ejectment, are easily to be distinguished front Witten v. St. Clair, supra, and from the case now before us; they do not *102conflict. To verify this statement see the following cases: Camden v. Lumber Co., 59 W. Va. 148; Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470; Garrett v. Ramsey, 26 W. Va. 345; Adkins v. Spurlock, 46 W. Va. 139. Point 3 of the syllabus in the case last cited reads as follows: “The bar of the statute of limitations not only defeats the' remedy, but divests the title, and confers it upon the adverse holder.” This I do not deny; provided, however, the state is not the holder of the title. But if the state is the owner of the title then the possession is not adverse. If the state had the only title, there would be no title which could be transferred from one claimant to the other. In that case there was a grant from the commonwealth. The doctrine announced in Witten v. St. Clair, is again recognized as the law in Coal Co. v. Howell, 36 W. Va. 489, the seventh point in the syllabus of which is: “To show pa3unent of taxes is not a sine qua non to plaintiff’s right to recover, unless such payment is one of tire, elements of his title.” By implication this says, that if payment of taxes- is an element of title, proof of payment is necessary to prove title. In the case now before us payment of. taxes by Riffle is an element of his title.
In the case of Archer v. Saddler, 2 H. & M. 371, wherein Judge Tucker uses the language quoted by Judge RobiNSON in support of the doctrine of presuming that a state grant has issued, that distinguished jurist, at the beginning of the same opinion, uses the following language, viz: “The principal questions in this case are: 1. Whether upwards of sixty years peaceable and uninterrupted possession in the caveator, and those under whom he claims, together with payment of quit rents antecedent to', the revolution, and of taxes since that ■period, afford a sufficient ground to presume a grant from the crown,' for the lands in question.” (The italics are mine). What would have been the opinion of that eminent judge, as to presuming a grant in favor of a claimant who had paid no quit-rents or taxes? We can only guess. Furthermore; his opinion shows that such a rule as a presumption of grant was not then established, but that it was likely to become necessary in consequence of the operation of the law of descent, and that such rule, if ever established, would be born of necessity. But what would have been Judge Tucker’s view concerning ■ the “necessity” of *103such a presumption, if tbe organic law of Virginia had been, at the time he wrote, the same as section 3, Art. XIII of the Constitution of West Virginia? .Again, we can only guess. How much easier it is in West Virginia, at this time, to prove a good possessory title under the Constitution than it was ever before to prove title by grant! Proof of possession for 10, and of payment of taxes for 5 years, msakes an indefeasible title. As Judge BRANNON appropriately expresses it in State v. Jackson, supra, such proof establishes a “constitutional grant,” to which I may add, good against all the world. The opinion by Marshall, C. J., in Alexander v. Pendleton, 8 Cranch 462, quoted as authority by Judge BobiNSON, was rendered in a suit in equity to quiet title, and in that case a grant from the commonwealth was shown. Ricards v. Williams, 7 Wheat. 110, from which Justice Story is quoted, was a case from Connecticut. Furthermore, our laws in relation to land titles, and our rules of practice in regard to what is to be proven in order to establish title in actions of ejectment are reasonable and equitable, and they are too well established by modern adjudications of our own Court and of the court of Virginia, to justify their overthrow by the introduction of different laws and rules gleaned from other jurisdictions whose laws upon the subject may be unlike our own in many respects.
If plaintiff has not, in fact, paid taxes on the land for which he sues, it would be against the policy of the organic law.to permit him to recover it; if he has, in fact, paid his taxes he is invested with an indefeasible title, and being able easily to prove whether or not he has paid taxes, I can see no reason in law for presuming that he had obtained a grant. I have always understood that the law gave the defendant in ejectment the benefit of a presumption that he was entitled to his possession at least, and burdened the plaintiff with proving title. This Court went even further than this, and held that the defendant in possession was presumed to be the owner, in the case of Teass v. City of St. Albans, 38 W. Va. 1, cited by Judge BobiNSON in the majority opinion. This burden of proving title can not, in my opinion, be relieved by presuming any fact essential to show title. It was to invest persons with good title to land who are in this plaintiff’s situation and who paid taxes, and thus to quiet titles, protect actual settlers and en*104courage the state’s development that section 3, Art. XIII, was inserted in the Constitution. But it was certainly not the policy to invest such an one with title who did not pay taxes.
I would reverse the judgment of the lower court for failure of plaintiff to prove title.