Page:Harvard Law Review Volume 9.djvu/496

468 HARVARD LAW REVIEW. after it shall have been ascertained that the fence was on his neigh- bor's land. If A.'s conscience does not permit him to deny the fact that his intent really was to claim the strip only on the con- dition that the fence was on the true line, the Maine courts declare that his possession is not adverse to B. This view of what constitutes adverse possession in such circum- stances was early combated by the Supreme Court of Connecticut in an admirable opinion by Chief Justice Hosmer.^ The court in Maine plants itself upon a principle that disseisin cannot be effected by possession taken by mistake.^ At least this broad statement seems to be justified by an early decision, though the doctrine is now qualified to the extent of stating that possession by mistake may or may not work a disseisin according to circumstances.^ Chief Justice Hosmer argues most convincingly that it Is " the visible and adverse possession with the intention to possess that constitutes the adverse character, and not the remote views or belief of the possessor." The doctrine thus disclaimed has recently come up for re- examination in the State of its origin.* The opinion by White- house, J., maintains with much force the correctness of the views above indicated of the intention of the adverse holder. It Is well worth reading for the ingenuity with which the learned judge meets the objection that the soundness of this position has been ques- tioned in other jurisdictions. No one denies that the quo aniino with which land is held is an essential element in adverse possession. It is equally agreed that each party has the intention of occupying and using the land up to the fence as his own. The difficulty arises, it would seem, from attaching a meaning to the term " hostile intention " that may not properly belong to it. The rule of adverse possession takes its origin, we may believe, from the familiar instance of a stranger en- tering upon the land of another. The intruder, we mean, occupies the land of one to whom he is in reality a stranger. The parties are not neighbors. Occupancy by a stranger, from the very nature of the case, is adverse and hostile in character. It can have but one meaning. The relation, however, of two adjoining owners of land, who live as neighbors to each other. Is somewhat different. In most instances propinquity tends to create and keep alive kindly 1 French v. Pearce, 8 Conn. 439. 3 Preble v. Railroad Co., 85 Maine, 260. 8 Ross V. Gould, 5 Greenleaf, 204. * Ibid , Emery, J. not concurring.