Page:Federal Reporter, 1st Series, Volume 2.djvu/451

4-11 FEDERAL REPORTER. �so in thîs case, in which the mistake haa been atout a small part of the title only? It is true, the defendant claimed that under bis deed he was entitled to hold up to the hedge, His possession, however, was continued for the required time under a claim of title in fee. Pie did not take possession admitting the possibility of some mistake, and saying, "I only claim to the true lihe, and if tbis liedge is not on the true Une I do not claim to it;" but he openly claimed the hedge to be the true boundary, and always claimed title up to it aa such, exclusive of plaintifï and all others. �The cases relied upon by plaintiff to sustain his position, that if the defendant intended to set his fence on the true line, and it is not so, his possession bas not been adverse, ail, upon examination, corne short of doing it. Expressions can be found in some of the opinions which. wben separatedfrom the context and the facts, give some countenance to the doc- trine contended for by plaintiff. But it will be found that the possession which bas been held not to be adverse bas been taken and kept without an unqualified claim of title. Thus, in Howard T. Reedy, 29 Ga. 152, it was proved that the defendant had agreed at one time, within the statutory period, to put bis fence upon the true line wheu he should reset it. The expressions of the court must be read witb tbis fact in view. �So in Phelps v. Henry, 15 Ark. 297, the possession which ■will not ripen into title is said to be one held without title or claim of right, and only in ignorance of the true boundary. Alsp in Broivn v. Cockerell, 33 Ala. 38, 45, a case as favor- able to plaintiff as any eited, the court says, in one place : "If a party occupies land up to a certain fence, because he be- lieves it to be the true line, but having no intention to claim up to the fence if it should be beyond the line, an indispen- sable element of adverse possession is wanting," (i. e., claim of title.) �The intent to claim does not exist, and the claim which is eet up is upon condition that the fence is on the true line. Tbis quotation, standing alone, is seemingly an authority for plaintiff; but furtber on the court use other language which ����