The alleged fact that complainant owned lands embraced within the single enclosure (being alternate sections) does not state a novel situation. It very frequently occurs that a person claims by adverse possession lands adjacent to lands concerning which he holds record title, the whole being comprehended within one enclosure.
It also appears settled that an enclosure may depend in part upon a natural barrier.
See 2 C.J.S. Sec. 26, page 541, and cases there cited, especially Alice State Bank v. Houston Pasture Co., 38 S.Ct. 496, 247 U.S. 240.
A person may often enclose lands by erection of a fence on less than all sides simply by connecting with the fence or fences of his neighbor erected along one or more sides, where the same exists. For the purpose of this hearing it appears immaterial who erected the north boundary fence, if in fact it be true as alleged, plaintiff maintained all fences about the enclosure. To the writer it appears that a person may enter *Page 456 upon an enclosed tract and in course of time might acquire title thereto if he protects same by substantial enclosure and otherwise adversely holds same as provided by statute.
The statute in question refers to a substantial enclosure, and does not refer to a statutory legal fence. Certainly the statutory legal fence is a substantial one; however, the terms are not synonymous.
The bill of particulars does state as an alleged fact when plaintiff began occupancy of the land, the construction and maintenance of fences which with the barriers described it is alleged "constituted a perfect and complete enclosure so as to establish a, substantial cattle-proof enclosure." There is the further allegation as a fact "and continuously kept up and maintained said fences as installed and in proper state of repairs and exclusive possession of all lands within said enclosure, and such possession was open, uninterrupted, notorious, hostile, etc., beginning 1917 to and including 1938." And plaintiff states "use of land by its tenant, Calvin Platt, began March 6, 1927, by use of the property as pasture, construction of fences and cross fences, establishing artesian wells, cattle pens, camping sheds and dipping vats on the property, and that between the years 1917 and 1938 plaintiff obtained large quantities of timber therefrom."
These and other allegations of fact in the bill of particulars should entitle plaintiff to the right of offering proof to sustain same and, therefore, I think the order and judgment of the trial court should be reversed.