Steers v. Yorke ( 1871 )

Opinion op the Oourt by

Judge Hardin:

We perceive no ground of objection to tbe first instruction given to tbe jury at tbe instance of the plaintiff, but regard tbe second instruction so given as misleading and erroneous in virtually depriving tbe defendant' of tbe benefit of an adverse possession of tbe ground in controversy, if while so bolding it be labored under a mistake as to tbe true boundary of tbe lot. If be bad actual possession of tbe ground, openly using and claiming it as bis own, for tbe requisite time to make tbe statute of limitation a bar as in ordinary cases of continuous, adverse possession, tbe fact that be placed bis enclosure beyond the true line, by mistake, could not affect bis right to rely upon tbe statutory bar. And for tbe same reason tbe qualification given by tbe court to tbe second instruction asked for tbe defendant, was also erroneous.

Wherefore, for tbe reasons indicated, the judgment is reversed and tbe cause remanded for a new trial and further proceedings not inconsistent with this opinion.