dissenting.
The testimony was heard ore tenus by the trial court, and I am mindful that such conflicts as there may be in the evidence have been resolved in favor of appellees, yet upon careful scrutiny of the testimony, I find no material conflicts.
I am unable to agree with the majority opinion because it fails realistically to evaluate the convincing and conclusive evidence offered by appellants to prove adverse possession under color of title. It accords unjustified weight and importance to trivia offered by appellees to break the continuity of appellants’ actual, open, visible, notorious and hostile occupancy and exclusive use of the property for the only purposes for which it was adaptable and for the necessary period of time. Sec. 8-5, Code 1950.
The origin of Ball’s Mill Pond is not known but in 1824 James Ball owned 530 acres of land with the grist mill thereon, and it is agreed that the mill was the same one that was located upon the five acres of high land acquired by David H. Leake 105 years later. Nor *981is there any evidence showing how or by what authority the pond was formed, but a dam now exists across its western end, in which is located a spillway adjacent to and bordering Leake’s high land, over which spillway the water flows from the pond.
At times during the period between 1824 and 1929, a few deeds were executed and recorded conveying tracts of land adjacent to the pond, and in some of them it is recited that the grantors áre heirs and descendents of James Ball and the tracts of land conveyed are described as bounded, in part, by Ball’s Mill Pond. Yet no deed, other instrument or record in evidence purports to transfer or convey Ball’s Mill Pond to anyone until it was conveyed by L. T. Rock to Paul L. Ruehrmund on December 14, 1923.
Though it be true that record title to the 19½ acre pond was not proved to be in L. T. Rock, yet he was concededly the owner of the water powered grist mill and the five acre tract of land upon which it was situate, along with all privileges and appurtenances incident to the acreage and mill. The deed of August 14, 1902, from Alex Stronach, et al., heirs and descendents of James Ball, to L. T. Rock described the five acres, more or less, of high land as bounded in part by the pond and conveyed the land, mill and “all privileges and appurtenances thereto belonging.”
It also appears from the deed of December 14, 1923, from L. T. Rock, widower, to Paul L. Ruehrmund that the grantee acquired fee simple title to the five acres, more or less, bounded in part by the pond and upon which the mill was located, with all appurtenances, and color of title to the pond in controversy.
The grantor in that deed, after stating the boundary lines of the five acres upon which the mill was located and the description of the property granted, continues thus:
“* * * together with the unqualified and absolute right to maintain and have the dam and pond adjoining the above described tract of land, to the exclusive use and benefit of the party of the second part, his heirs and assigns forever.”
This unqualified grant of the dam and pond by Rock, a cotenant with appellees, to Ruehrmund who theretofore had no rights or interests in the property and his entry thereon constituted disseisin of the other cotenants. If need be this disseisin was further accomplished, confirmed and made certain by the subsequent grants by Ruehrmund and those claiming through him of the pond to Eichel*982berger and Leake and their entry upon and control of the premises granted.
“It is well settled in this State that where a purchaser, if he be a stranger to the title, takes a conveyance of the whole estate in a tract of land, although his grantor was only a tenant in common with others, and in pursuance thereof enters into the exclusive possession of the land, claiming title to the whole, it is an ouster of the other co-tenants and the grantee so entering and claiming title may rely ,upon his adversary possession if continued the statutory period.” Virginia Coal and Iron Co. v. Hylton, 115 Va. 418, 424, 79 S. E. 337; Sedgwick and Wait, Trial of Title to Land, § 286, p. 204; 2 Tiffany, Real Property, 2d ed., § 513, p. 2019; Johnston v. Virginia Coal & Iron Co., 96 Va. 158, 31 S. E. 85; Virginia Coal & Iron Co. v. Richmond & Clinchfield Coal Corp., 128 Va. 258, 104 S. E. 805; Cochran v. Hiden, 130 Va. 123, 107 S. E. 708; Annotations, 27 A. L. R. 8, 71 A. L. R. 444, 32 A. L. R. 2d 1214.
By each of the five deeds, beginning with that of Rock to Ruehrmund of December 14, 1923, and ending with the deed of Eichelberger to David H. Leake of May 15, 1929, recorded May 16, 1929, conveyance was made of the five acres bordering the pond, the mill situate on the high ground, the dam and appurtenances, in fee, and each deed also conveyed the pond to the respective grantee.
It is also most significant that George W. Johnson, a nearby resident and the only owner of land adjacent to and abutting the dam other than Sue Leake, testified and freely conceded that David H. Leake, her predecessor in title owned and controlled the dam as well as the 19½ acre pond.
Long prior to and during Rock’s ownership of the five acres, mill, privileges and appurtenances, the only commercial use to which the pond and its waters were put was operation of the grist mill. However, while Eichelberger or Leake owned the property, operation of the mill ceased and it was never thereafter used, and the land, pond and improvements were used by them solely for fishing, hunting, and boating, the only uses to which they were then susceptible. Without the mill, which was closed about 1929 and later demolished, the pond was adaptable to no other uses.
A caretaker or keeper, George Wesley Clark, was placed on the premises while Eichelberger was the owner, and he was charged with the duty of keeping people from fishing in, or otherwise using, the pond. Clark was continued in that capacity by David H. Leake, and *983from 1929 no one was allowed to use the pond or premises without Leake’s written authorization.
Both keepers, George Wesley Clark, who with his wife and son occupied the house on the premises from early 1929 until 1936, and William J. Barton, who was secured as caretaker about a month after Clark moved from the premises and who occupied the house with his family and acted as caretaker from May of 1936 until 1951, prohibited anyone from using Ball’s Mill Pond who did not present written permission from Leake to do so. During the time that Barton lived on the premises, he went around the pond frequently but found no evidence that anyone had been fishing from the shores. In fact the banks of the pond were set in dense growth of bushes and trees, and there was no path or approach to the pond during the twenty-two year period that Clark and Barton acted as caretakers except along the road, or entrances near the tenant house occupied by them and their families. On occasions Barton caught people fishing from the dam and required them to leave, but throughout the periods that Clark and Barton served as keepers, no boats were on the pond except those belonging to Eichelberger and Leake and their licensees. When Clark was at work or otherwise absent from the premises, his wife and child allowed no one to fish in the pond without a permit from David H. Leake, and this practice was adhered to during the fifteen or sixteen years that Barton served as caretaker.
Beginning in 1929 and throughout the ensuing years, no difficulty was encountered by Leake in his exercise of open, notorious, complete and exclusive control and dominion over the pond and its use until 1954, approximately three years after the caretaker, William J. Barton had moved and about a year before Leake’s death. In 1954 or 1955 Leake was informed that some persons had been using the pond in his absence and without his permission, and during his last illness he asked his nephew to investigate and ascertain who were using the pond, which resulted in a revocation of the permit that he had given Bromley.
It is also significant that from the time that Rock conveyed the property to Ruehrmund in 1923 and throughout the time that subsequent grantees, including Eichelberger and Leake, held the property, no person expended any money or effort to stock the pond or maintain the dam and spillway other than those to whom the pond and dam had been conveyed, along with the mill and the five acres of high land.
*984In Lyons v. Fairmont Real Estaste Co., 71 W. Va. 754, 77 S. E. 525, 532, in stating the character of occupancy necessary to establish adverse possession, it is said:
“* * * The occupancy need not be such as physically to bar out trespassers, but only to manifest unequivocally a claim of ownership on the part of the occupant and preclude all others, not merely from trespassing upon it, but from using it as their own or in common with the claimant. Obviously this may be done in more than one way; and what acts are sufficient depends upon the condition of the land and its adaptability to use. * * *"
In Zeilin v. Rogers, 21 Fed. 103, 108, the principle is stated as follows:
“* * * Neither residence upon land nor its inclosure by artificial means is absolutely necessary to create an adverse possession, even where the premises are not claimed under color of title. Either of these circumstances is strong evidence to establish such possession; but it may be shown in other ways. A subjection of the land by the claimant to such uses as it is ordinarily susceptible of, to the exclusion of others, is an adverse possession; * * *."
In a letter of April 7, 1954, to Leake from Mrs. Fannie Richardson, an owner of land adjoining the pond and a nearby resident, she stated that she did not claim any of Ball’s Mill Pond and that Leake owned it. George W. Johnson, likewise owner of land bordering on the dam and a nearby resident, testified that he recognized that Leake owned the pond; that he thought it was necessary to get a written permit from Leake to fish therein; that he did so, and that it was common knowledge that the pond belonged to Leake. This testimony proves that adjacent owners and others in the community considered Leake’s possession and control to be absolute. These circumstances, along with the presence of Leake’s keepers at the pond, for a period of 22 years with express directions to deny use of the pond and boats to all persons lacking written permission from Leake, show that Leake’s exercise of exclusive use and control of the pond subsequent to his purchase was also actual, notorious and hostile.
In Baber v. Baber, 121 Va. 740, 759, 94 S. E. 209, recognition of constructive notice and declaration of its sufficiency is stated in the following language:
“However, the notice to or knowledge of the coparceners, or others originally having privity of title with the disseisor, of his disclaimer aforesaid and assertion of an adverse right, required to be *985proved before the running of the statute of limitations will begin, need not be actual. It may be constructive. Stonestreet v. Doyle, 75 Va. 356, at p. 378; 40 Am. Rep. 731; Va. Coal, etc. Co. v. Hylton, 115 Va. at p. 424, 79 S. E. 337, Ann. Cas. 1915a, 741. It may be presumed from a great lapse of time and other circumstances which may warrant such presumption.”
Corroborative of the fact that adjoining owners knew of the conveyance of the pond to Leake and his claim to its ownership, and that they asserted no rights therein or thereon is further shown by the testimony of William J. Dann. He, a resident of New York City, purchased part interest in a tract of land of 1,223 acres in 1939 that bordered on the pond. On his visits to Lancaster County in 1939 or early 1940, he “heard general discussion” that persons made claim to the control, or ownership, of the pond as a whole. He thereupon made an examination of the records and found the deeds to Eichelberger and Leake conveying to them the pond; yet neither he, nor the owners of the tract of land that they had acquired, made any claim or assertion of any rights in or to the pond.
The majority opinion states that Mrs. Eoline Ball Jesse “gave permission through the years to her friends to fish” in the pond and that her son, James D. Jesse, Jr., fished in the pond at times from 1930 to 1939. However, the opinion fails to state that the permissions given by Mrs. Jesse to her friends were given in 1925 or 1926, years prior to Eichelberger’s and Leake’s ownership and before a keeper was placed on the premises in 1928 or 1929. The unimportance of the testimony of James D. Jesse, Jr., and the fact that his approach to and presence on the wooded bank of the pond was clandestine and wholly unknown to the keepers is best disclosed by these extracts from his testimony:
“Q. Could you tell us when and under what circumstances you fished there please?
“A. Well, it was more or less when I was a boy. I was in there from about 1930, probably, on up to 1938 or 1939 that I hunted back there and fished as well back on this property, somewhere in those years.
* * * * * * *
“Q. How often did you fish up there?
“A. Oh, possibly in the summer maybe a month or so, like that, *986and maybe in the fall of the year I would go back hunting. It was more like walking. * * *
* * * * * * *
“Q. Were you fishing from the boat or what?
“A. I was on the shore and just most anything a kid could rig up, 12 or 15 years old, whatever was my way of fishing.”
The fact that no permission was ever given by Mrs. Jesse, who lives two and one half miles from the pond, to any friend to fish in the pond after Eichelberger and Leake acquired it and placed keepers there to exclude all persons, and the circumstance that from 1930 to 1939, the youthful “Isaac Walton” who fished therein at times, never approached the pond from the road by the keeper’s cottage but through densely wooded areas, are convincing circumstances tending to prove that Eichelberger and Leake’s exclusive control and use of the pond was known and recognized by the adjoining owners. The conduct and actions of Mrs. Jesse and her son tend to strengthen and confirm the statement made by George W. Johnson that it was common knowledge that Leake owned the pond.
For the reasons stated I would reverse the decree and declare Sue Leake to be the absolute owner of the pond, free of any rights or interests of appellees.
Hudgins, C. J., joins in this dissent.