said such patents have been always held valid, "if continued without interruption for the whole so far as respects the land not excluded, but to period which is prescribed by the statute for pass no legal title to the land excepted from the enforcement of the right of entry, is evithe grant, as the lands are in this case in the dence of a fee" and bars the right of recovery. habendum of the patent; and not a doubt is Independently of positive statute law, such a entertained that the rule there laid down is the possession affords a presumption that all the correct rule upon the subject. Kenna v. Quar-claimants to the land acquiesce in the claim so rier, 3 W. Va. 212; Hardman v. Boardman, 4 | evidenced and enforced, or that they forbear for Leigh (Va.), 382. some substantial reason to controvert the claim of the possessor or to disturb him in the enjoy ment of the premises. Secret possession will not do, as publicity and notoriety are necessary as evidence of notice and to put those claiming an adverse interest upon inquiry. [*146 Bradstreet v. Huntington, 5 Pet. 402; Blood v. Wood, 1 Met. 528; Ewing v. Burnet, 11 Pet. 53. Mere occupation is not sufficient, but the possession must be adverse, as seisin and possession are supposed to be coextensive with the right, and that the possession continues till the party is ousted thereof by an actual possession in another under a claim of right. Ang. Lim. 377; Clarke v. Courtney, 5 Pet. 354; McIver v. Ragan, 2 Wheat. 29; Kirk v. Smith, 9 Wheat. 288.

2. Sufficient evidence was introduced by the defendants to show that they or some of them took adversary possession of the premises in controversy, prior to the forfeiture of the same to the state, and that they continued to occupy the same throughout the period that the title was vested in the state, and after the state conveyed the tract to the grantors of the plaintiff to the time when the suit was instituted; but it is conceded that such adversary possession before the forfeiture was not for the period of fourteen years, the time then required by law to bar a recovery, nor did such adversary possession subsequent to the date of the conveyance by the state to the grantors of the plaintiff and before the service of process, continue long enough to bar a recovery. Both combined would maintain the defense, and, of course, if the statute continued to run during the period the title was vested in the state by the forfeiture, the instruction given to the jury was erroneous and the judgment must be reversed. Adverse possession was the defence in the case of Stoughton v. Baker, 4 Mass. 526, where the question arose in respect to the right of the defendant to an ancient grant which was subject to an implied limitation, and it was contended that he had been so long possessed of the premises that the state had no right to interfere in any form of legal remedy. Possession and uninterrupted en joyment for a very long period was proved in that case, but the court held that the limitation could not be extinguished by any inatten145*] tion or neglect in compelling the owner to comply with it, for no laches is to be imputed to the government and against it no time runs so as to bar the public rights, which is no more nor less than another form of words for expressing the ancient rule of the common law, that time does not run against the state. United States v. Hoar, 2 Mass. 312; Lindsey v. Miller, 6 Pet. 673.

Continuity of possession is also one of the essential requisites to constitute such an adverse possession as will be of efficacy under the statute of limitations. Whenever a party quits the possession, the seisin of the true owner is restored, and a subsequent wrongful entry by another constitutes a new disseisin, and it is equally well settled that if the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the efficacy of all prior possession, so that to gain a title under the statute, a new adverse possession for the time limited must be taken for that purpose. Brinsfield v. Carter, 2 Kelly (Ga.), 143; Ringgold v. Malott, 1 H. & Johns. 316; Hall v. Gittings, 2 H. & Johns. 112.

Beyond all question, the case last cited presented the same question as that involved in the case before the court, and the decision was that the forfeiture to the state within the period necessary to give effect to the statute did have the effect to break the continuity of adverse possession, and prevented the operation of the statute bar. Taylor v. Burnsides, 1 Gratt. 190.

Viewed in any light, the court is of the opinion that there is no error in the record. Judgment affirmed.

Mr. Justice Strong dissenting:

In the view which a majority of my brethren take of one branch of this case, I am unable to concur.

Argument to show that the statute of limitations ceased to run when the forfeiture attached and the title became vested in the state can hardly be necessary, as the rule that time does not run against the state has been settled for centuries, and is supported by all courts in all civilized countries. Ang. Lim., 5th ed., 28. Suppose that is so, still it is insisted that the The plaintiff in the court below claimed title two periods, that is, the period of adverse pos- to the land *in controversy under a pat- [*147 session before the forfeiture and the period sub-ent of the state of Virginia, granted to Albert sequent to the conveyance by the state to the plaintiff or those under whom he claims, may be added together and considered as one entire period, for the purpose of maintaining the defense; it is clear if that proposition is correct the instruction given was erroneous. But the proposition cannot be admitted, as it is well settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive, and adverse. Cook v. Babcock, 11 Cush. 210. Such a possession, it is conceded,

Gallatin on the 10th day of February, 1786. It does not appear that any possession was ever taken under this patent, but on the 1st of November, 1836, the lands were forfeited to the state for failure, by the owners, to make entry thereof upon the commissioner's books for taxation. On the 12th of February, 1844, however, an act of the legislature was passed for the relief of Dundas and Kugler, who had become the grantees of the Gallatin right, by which they were allowed to redeem the lands on the pay ment of all taxes and damages due thereon, and

The defendants claim as grantees by sundry mesne conveyances through James T. Watson from Samuel M. Hopkins, who also obtained a patent from the state, dated July 1, 1796.

on the 8th day of May, 1845, the redemption | utes of limitation, unless expressly named. The was made. The plaintiff has no other title. defendants here are not asserting their adversary possession against the state. The controversy is between them and one claiming under the Gallatin title, which, though at one time forfeited to the state, was allowed to be redeemed. They claim nothing against the state on account of their possession from November 1, 1836, to May 8, 1845, though it was *adversary and uninterrupted, either by [*149 abandonment or by the entry of the state or of the plaintiff.

I agree that neither this patent to Hopkins, nor any legislation of the state affecting it, presents any sufficient defense to the claim of the plaintiff under the earlier patent to Albert Gallatin. But the defendants set up in the court below another defense. It was that they were protected by the statute of limitations. But why is not that possession operative They submitted evidence tending to prove that against the plaintiff? I think it is. As bethey, or those through whom they claim, took tween him and the defendants, nothing but an actual and adversary possession of the lands in entry or an action brought was sufficient to 1827, and that such possession had been con- change the character of their possession or tinued until the institution of this suit. Rely-break its continuity. It is not, however, necesing upon this, they presented to the court the sary to discuss this. It is sufficient for this following two points (among others) and re- case that the defendants held actual and continquested that they might be given as instructions uous possession of the lands from 1827 until to the jury. 1857, when this suit was brought; that the possession was always adversary to the plaintiff; that he never took any steps to disturb it, and that he has had more than fourteen years within which he might have asserted his right.

"Fourth. If the jury are satisfied from the evidence that adversary possession commenced before the 1st of November, 1836, and the same possession continued during the time of the forfeiture, as well as from the 8th of May, 1845, the time of redemption, up to the time of the institution of this suit, and by adding the time of adversary possession before forfeiture to the adversary possession after redemption makes a period of fourteen years, then they must find for the defendants, or such of the defendants as make out the fourteen years as aforesaid. 148*] *"Fifth. That the act of 1844, which authorized Dundas and Kugler to redeem the lands therein specified, did not so operate as to relieve them from the effect of the statute of limitations, which had commenced running for the defendants before the forfeiture, if the jury believed the defendants continued their possession without interruption during the forfeiture, and up to the time of redemption, and that the defendants continued the possession up to the time of the institution of this suit."

Both these points the court refused to affirm, and, on the contrary, charged the jury that on the 1st of November, 1836, the possession of the defendants terminated and passed into and remained in the commonwealth until the same was transferred to Dundas and Kugler by the act of February 12th. 1844, and that the adverse possession acquired by the defendants before November 1, 1836, could not be connected with the adverse possession acquired by the defendants after Dundas and Kugler became revested with the title of the commonwealth. Herein, I think, was clear error. Plainly, had there been no forfeiture, the adversary possession of the defendants, kept up continuously during fourteen years, would have protected them against any right of entry by the plaintiff. The forfeiture did not disturb their actual possession, nor their possession under claim of exclusive right in themselves, which is what is meant by adversary. I agree that their possession between the forfeiture and the redemption gave them no right as against the state. This is not because their possession was not adversary. nor because the actual possession was transferred by law to the commonwealth, but because adversary possession is unavailing to bar any rights of the state, it not being subject to stat

Concede that the plaintiff's right of entry was suspended by the forfeiture, still it revived when the lands were redeemed, and if the defendants' possession was adverse to his right and continuous during fourteen years in which he might have entered or asserted his right by action, I am unable to perceive why he is not barred.

The fact that an owner's right of entry has been suspended, after the statute has commenced running against him, can be of no importance, if he has had the statutory period within which to bring his action against the disseisor in adverse possession. If this is not so, then war might not only suspend the running of the statute, but render of no effect all adverse possession held before the war commenced. This has never been asserted. It is the uninterrupted adverse possession alone which creates the bar. It is not essential to it that the right to enter or to bring suit should have suffered no interruption.

Every reason for applying the statute, which would have existed had there been no forfeiture and, consequently, no suspension of the plaintiff's right to enter, exists in full force now. Statutes of limitation are dictated mainly by two considerations: one, that it is public policy to discourage stale claims, and the other, that it is not to be presumed that one having a right would delay asserting it for a long period in full view of another's wrongful interference with it. Hence, the period was fixed [*150 at fourteen years, in Virginia and West Virginia, within which a party out of possession may bring his action of ejectment against one in possession holding adversely. Assuming that the jury would have found the facts as stated in the points proposed, the plaintiff has had that entire period; and the public policy, as well as the presumptions arising from his laches, which gave birth to the statute, apply, in all their potency, to his case. And the statute is not only a bar to the assertion of a right of entry upon one in adverse possession after the expiration of the period fixed, but it gives a title to the disseisor. The law casts title upon him, and as

For

I am authorized to say that my brethren, Mr. Justice Davis and Mr. Justice Bradley, concur in this opinion.

sures to him the privilege of asserting it, either | cuit court erred in refusing to affirm the defendaggressively or defensively. For the acquisi- ants' fourth and fifth points, and also in the intion of this right the defendants have done all struction which was given to the jury respectthat the law contemplates. They entered un-ing the effect of the statute of limitations. der a claim of exclusive right, that is, adversa- this reason I think the judgment should be rerily, and they held that adversary possession versed, and that a venire de novo should be continuously until this suit was brought. That awarded. the Gallatin title was forfeited during their occupancy was no fault of theirs. It was due to the wrongful neglect of the plaintiff, or those under whom he claims, to enter the lands upon the commissioners' books, and to pay the taxes. Can he now make use of a forfeiture, caused by his own neglect, to obtain or preserve rights which, confessedly, would have no existence but for his neglect? Yet this was, in substance, the instruction given to the jury. His laches, resulting in a forfeiture, is to have the same effect as an entry would have had, or as action brought. Thus he is allowed to secure an advantage through his own default. Thus he is allowed to make use of his own unlawful nonfeasance to break the continuity of the defendants' hostile possession. I cannot assent to such a view of the law.

Had the commonwealth, after the forfeiture of the Gallatin title, granted the land to some other grantee, I agree that such grantee would not be affected by any adverse possession of the defendants held by them before the forfeiture, of less duration than fourteen years. But such was not the case. The holders of the Gallatin title were allowed to redeem. The nature

of the transaction by which they became rein151*] *vested with the title is plainly seen in the act of February 12, 1844, passed for their relief. Its preamble recited that the lands had become forfeited by reason of failure to enter the same on the books of the Commissioners of the Revenue for taxation, and that Dundas and Kugler, the trustees of the North American Land Company, for whose use the title had been held, had petitioned for permission to "redeem" said lands on payment of the taxes assessed, together with six per centum per annum damages thereon. The 1st section authorized them to "redeem" on those terms, on or before June 1, 1845. The 2d section "released" unto them, for the benefit of the shareholders of the company,

all the right, title and interest which had been forfeited upon the payment of said taxes and damages. The 3d section authorized a judg ment against the lands for the amount of costs incurred, and for reasonable compensation to any commissioner of delinquent and forfeited lands by reason of his having prepared the redeemed lands for sale; and the 4th section directed all proceedings by such commissioners to be suspended until after June 1, 1845. It thus appears that the redemption was not the acquisition of a new title. It was the common case of a waiver of a forfeiture. Dundas and Kugler, after the redemption, held, by their old right, the Gallatin patent, and it was this right which the plaintiff gave in evidence and asserted in the present action. No new patent was issued to Dundas and Kugler. The act of 1844 contains no words of grant to them, and its avowed purpose was to place them in the same position, as holders of the title and trustees of the company, which they occupied before the forfeiture.

I am, therefore, of the opinion that the cir

*THE STEAMER WILLIAM H. WEBB, [*406 her Tackle, etc., Ogden Haggerty et al., Claimants, Appts.,

บ.

HENRY H. BARLING and Abner H. Davis, Exrs. of Edward Mott Robinson, Deceased, et al.

(See S. C. "The Steamer Webb," 14 Wall. 406–418.)

Agreement to tow a ship, effect of-burden of proof-excuse for collision-new trial-estent of judgment-modification of damages.

1. An engagement to tow a ship does not impose either an obligation to insure or the liability of common carriers.

2. Such contract only requires in its fulfilment, that degree of caution and skill which prudent navigators usually employ in similar services. 3. The burden is always upon him who alleges the breach of such a contract, to show either that there has been no attempt at performance, or that there has been negligence or unskilfulness to his in

jury in the performance.

4. Mistakes in judgment in the management of the ship while attempting to escape from the peril into which she was brought by the tug cannot ex

cuse the tug.

5. A deposition which was read before the commissioner appointed to ascertain the damages. which related only to the amount of damages, will not cause the case to be sent back for a new trial. 6. Where the steamer was discharged from arrest, on stipulation, the stipulators are bound only to the extent of their stipulation.

7. Where the decree was largely in excess of the stipulation, while it is affirmed upon its merits, it must be modified in regard to the amount of damages recoverable from the stipulators.

The owners of the steamship Shooting Star, libeled the tug William H. Webb, Apr. 28, 1859, for $17,500 damages for negligently towing the ship. The owners bonded the steamer in the sum of $18,000 for the damages, and $250 for costs.

The owners of the William H. Webb also libeled the Shooting Star, Aug. 2, 1859, to re cover the agreed price for towing her, and for extra services and for the wages of the pilot. and for a hawser and expenses, amounting to $2.025.

The causes were heard together as cross-ations.

In each case the district court made a decree for the libelants, with a reference to a commis sioner to compute the damages. The commissioner reported against the Shooting Star, $1.008.15 damages. The report was excepted to and confirmed, and final decree entered for $1, 667.24, Jan. 14, 1867.

1871.

THE WILLIAM H. WEBB V. ROBINSON'S EXRS.

It was appealed to the circuit court and af- and unskilful towage, that the libel has been
filed, and the first question is, whether the tow-
firmed.
The commissioner reported against the Wil-age was either unskilful or negligent.
liam H. Webb, $20,378.50.

The report was excepted to and confirmed, and final decree entered for $24,590.10, Apr. 16, 1867. It was appealed to the circuit court and affirmed, with final decree, for $28,092.21, Dec. 2, 1868, from which an appeal was taken to this court.

The facts are stated by the court. Messrs. E. C. Benedict and Chas. Jones case of common carriers, damage sustained by for appellants.

Mr. D. D. Lord for appellees.

Mr. Justice Strong delivered the opinion of the court:

It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskilfulness to his injury in the performance. Unlike the the tow does not ordinarily raise a presumption The contract that the tug has been in fault. requires no more than that he who undertakes to tow shall carry out his undertaking with that decree of caution and skill which prudent This was a libel filed by the owners of the navigators usually employ in similar services. ship Shooting Star against the steamer William But there may be cases in which the result is a H. Webb, for the breach of a contract to tow safe criterion by which to judge of the characthe ship from Portsmouth, New Hampshire, to ter of the act which has caused it. Had the the Port of New York. The libel charged neg- ship in this case been towed upon a shoal ten ligence and mismanagement in the towage, miles north or ten miles east of Handkerchief whereby the ship was stranded and sustained shoal, after leaving that shoal for Cross Rip, it serious injury. From the evidence it shows cannot be doubted that the fact of the strandthat the ship was taken in tow by the steamer ing at such a place, would, in the absence of exon the morning of the 22d of March, 1859, and planation, be almost conclusive evidence of unthat they arrived safely off Handkerchief shoal skilfulness or carelessness in the navigation of in the Vineyard sound early in the next follow the tug. The place where the injury occurred ing morning, passing about one hundred yards would be considered in connection with the infrom Handkerchief light. Here they were in jury itself, and together, they would very sattheir proper position. From Handkerchief isfactorily show a breach of the contract, if no light, the correct route for vessels bound for excuse were given. At least they would be suffiNew York is by a single straight course west, cient to cast upon the claimants of the tug the three quarters south to Cross Rip light, distant burden of establishing some excuse for the deabout eleven nautical miles, or less than thir-viation from the usual and proper course. teen statute miles, as appears by the chart and by the evidence of the master of the steamer. The steamer with her tow passed Handkerchief light about two o'clock in the morning of March 23. It could not have been at an earlier hour; it was probably later. Sherwood, the steamer's pilot, testifies that they were off Pollock Rip about one to one and a half o'clock, and off Shovel Full light a half hour later. If this is correct, as the steamer was running at the rate of some ten or twelve knots per hour, she could not have come opposite Handkerchief shoal earHazard, lier than from two to half past two. the master of the steamer, also testifies that it was about one as they were approaching Pollock Rip, and Newcomb, the wheelman of the steamer, states it could not have been far from three o'clock when they were off the Handkerchief light. It may then safely be assumed, that when the steamer and tow left Handkerchief shoal for Cross Rip light, it was at least two o'clock in the morning, and probably later. From Handkerchief light the steamer ran with her full speed for some time, and then, shutting off her steam, ran with a less rate of speed until between three and four o'clock, when the ship took the ground on the Tuckernuck shoal, fully three miles and one third south of the correct course to Cross Rip light, where, after some vain endeavors to drag her off. the steamer left her and cast anchor in the neighborhood. When daylight returned, a faint effort was made to reach the ship, and this proving unsuccessful, the steamer left for Edgertown to obtain assistIt is to recover the damages sustained by the ship in consequence of *this careless [*414

ance.

In the present case the departure from the true course was not so great, but it was enough to devolve upon the tug the duty of explanaThe ship was, as we have noticed, towed tion. upon a shoal more than three miles south of the proper course to Cross Rip light. Had the course been a long one the deviation would not have been so remarkable. But as the entire distance from Handkerchief shoal to Cross Rip is less than thirteen statute miles, and as the ship was stranded when only about three quarters of this distance was "passed, it is [*415 apparent there must have been either bad management of the tug, or some unusual cause must have operated to produce the disaster; a cause against which ordinary prudence was not bound to guard. Certainly this is enough to impose upon the tug the necessity of explaining how she came to be so far off her course in running so short a distance. We do not say that in order to excuse her it must be shown the accident was inevitable, but it ought to appear that so remarkable a deviation from her correct course, made so soon after leaving Handkerchief light, was consistent with cautious and skilful management.

The weight of the evidence is that the ship was run upon the shoal in a little more than an hour; manifestly not more than an hour and a. half, after she had passed Handkerchief light. All the witnesses agree that it was between three and four o'clock when she took ground. Captain Hazard, of the steamer, testifies, that when they first struck the shoal it was between three and four, and he thinks about a quarter before four. It was probably earlier; for he

775