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Law School Case Brief

Lessee of Ewing v. Burnet - 36 U.S. 41 (1837)


An entry by one man on the land of another, is an ouster of the legal possession arising from the title, or not; according to the intention with which it is done: if made under claim and colour of right, it is an ouster; otherwise it is a mere trespass, in legal language the intention guides the entry, and fixes its character


Plaintiff filed an action of ejectment in the circuit court of Ohio, at December term, 1834, against the defendant, to recover a certain property lot in the city of Cincinnati. Both the plaintiff and the defendant claimed title under deeds from John Cleves Symmes, the original grantee of the United States, for all the land on which the city of Cincinnati is erected. The deed from Symmes, under which the plaintiff asserted his title, was executed June 11th, 1798, to Samuel Forman; the deed from Symmes to the defendant, for the same lot, was dated May 21, 1803. An adverse possession for 21 years, and upwards, was relied on, as constituting a sufficient legal title, under the statute of limitations of Ohio.


Was there adverse possession when the possession was open and notorious and possessed the property for 21 years? 




The trial court must have been satisfied that there was nothing in evidence, or any fact which the jury could lawfully infer therefrom, which could in any way prevent plaintiff's recovery; if there was any evidence which conduced to prove any fact that could produce such effect, the court must have assumed such fact to have been proved. It was the exclusive province of the jury to decide what facts are proved by competent evidence. It was also their province to judge of the credibility of the witnesses, and the weight of their testimony. The evidence justified the jury in finding an entry by defendant on property as early as 1804 and that he claimed the exclusive right to it under color of title from that time until the suit was commenced. The trial court did not err in refusing to instruct the jury that the evidence was not sufficient to make out an adverse possession.

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