delivered the opinion of the Court.
This was an action of ejectment, by Clark against Brazeau, and verdict and judg* ment for the defendant, Brazeau.
The plaintiff^ title appeared to be, that in 1799, one Bouis, under whom Clark makes title, petitioned the Lieutenant Governor for a concession of the lots in question, for the exclusive purpose of quarrying stone thereon — the petition ivas granted, with a plat of the land or lot, and an order of survey; that no survey was ever made, and that there has been no confirmation.
That some time after this order of survey, Bouis was seen quarrying stone on the ground in question 5 and that that part where he thus procured stone, was proved to be in the possession of defendant.
The plaintiff insisted, and required the Coart to instruct the jury, that, as Bouis was in possession, by quarrying stone, and under his order of survey, that his case was within the act of Congress confirming town lots. The Court refused so to instruct the jury, but required the party to prove, and make his claim better by proof of inhabitation, cultivation or possession ; and held, that the proof of quarrying stone, is not a sufficient possession, under the act of Congress. Of this opinion, I am also.
And as the plaintiff has not brought his case within the act of Congress, nor within the act of the General Assembly, pointing out the title which can support the action of ejectment, nor proved a common law possession, I am of opinion the judgment of the Circuit Court is right, and ought to-he affirmed, with costs.