## Facts

- The dispute involved a vacant sand-and-gravel lot in Cincinnati, Ohio, not suited to ordinary cultivation or building.
- Both parties traced title to a common grantor, John Cleves Symmes; Ewing held the older paper title, while Burnet claimed title through adverse possession.
- In 1803–1804, Burnet received a deed purporting to convey the lot and thereafter claimed ownership under that deed.
- For decades, Burnet engaged in acts of dominion consistent with the lot’s character, including digging and removing sand and gravel, allowing others to do so, excluding unauthorized users, and leasing sand-digging rights (including a lease in 1820).
- Burnet paid property taxes on the lot for many years (approximately 1810–1834).
- Ewing acquired the older legal title in 1824 and later sought to recover possession, finding Burnet in control.
- Ewing filed ejectment in federal circuit court in Ohio in 1834; Burnet defended on Ohio’s 21-year limitations period for ejectment, based on adverse possession.
- The jury found for Burnet, and Ewing sought Supreme Court review, challenging the instructions and the sufficiency of the adverse-possession evidence.

## Issues

1. What acts are sufficient to establish actual adverse possession of land that is not susceptible to enclosure, residence, cultivation, or other conventional improvements.
2. Whether 21 years of adverse possession under claim or color of title, even if the deed is void and the possessor had notice of an older deed, bars recovery by the holder of the elder legal title.
3. Whether the determination that proven acts amount to adverse possession is primarily a question for the jury.

## Decision

- The Supreme Court affirmed the judgment for Burnet.
- The Court held that adverse possession does not require fencing, buildings, residence, or cultivation when the land’s nature does not reasonably permit such uses.
- The Court held that visible, notorious, and continuous acts of ownership for 21 years after entry under claim and color of title can establish adverse possession on such property.
- The Court held that adverse possession for 21 years under claim or color of title bars recovery under an elder deed even if the adverse holder’s deed is void and even if the adverse holder had notice of the elder deed.
- The Court emphasized that weighing the evidence and deciding whether the acts constitute adverse possession is for the jury, and the verdict would not be disturbed where the evidence could support it.

## Legal Principles

- An elder legal title supports a right of possession until displaced by an actual ouster through adverse possession or until the right is otherwise barred by limitations.
- Whether an entry operates as an ouster depends on intent: entry under claim or color of right is adverse; entry without such a claim is a trespass.
- “Actual” adverse possession is measured by acts appropriate to the land’s character; where permanent improvement is impracticable, public acts of ownership may suffice.
- Continuous, open, notorious, and exclusive acts of ownership—such as removing resources, leasing extraction rights, excluding others, and paying taxes—may evidence adverse possession when maintained for the statutory period without interruption by the true owner.
- Color of title may be supplied by a deed that is void; long adverse possession under such color of title bars an action by the holder of an older deed after the limitations period.
- The jury is the primary factfinder on what acts occurred and whether they amount to adverse possession, subject to correct legal standards in the court’s instructions.

## Conclusion

The Court upheld a finding of adverse possession on unimproved, nonbuildable property where the possessor, claiming under color of title, performed long-standing, visible acts of ownership consistent with the land’s nature for the statutory period, and it treated the ultimate characterization of those acts as adverse possession as a matter for the jury.


Lessee of Ewing v. Burnet, 36 U.S. (11 Pet.) 41 (1837)