6S. The possession must be adverse. If it be perinissive, 2 Jac. & W. Ch. 1, or by mis take, 3 Watts, Penn. 280, or unintentional, 11 Mass. 296, or confessedly in subordination to another's right, 5 Barnew. & Ald. 223, it does not avail to bar the statute. If the occu pation is such and by such a person that it may be for the true owner, it will be pre sumed to be for him, unless it be shown that the adverse claimant gave notice that he held adversely and not in subordination. I Batt. Ch. Ir. 373 ; 1 Speers, So. C. 225. And this notice must be clear and unequivocal. If the aet of the tenant or adverse claimant may be a trespass as well as a disseisin, the true owner may elect which he will consider it, regardless of the wishes of the trespasser, who cannot be allowed to qualify his own wrong. 4 Mas. C. C. 329.
69. So that if the adverse claimant sets up his trespasses as amounting to an adverse possession, the true owner may reply they are no disseisin, but trespasseS only ; while, on the other hand, the true owner may elect, if be please, for the sake of his remedy, to treat them as a disseisin. 19 Me. 383 ; 8 N. H. 67. This is called a disseisin by election, in dis tinction from a disseisin in fact,—a distinction which was taken for the benefit of the owner of the land. Whenever the act done of itself necessarily works an actual disseisin, it is a disseisin in fact: as, when a tenant for years or at will conveys in fee. On the other hand, those acts which are susceptible of beiug made a disseisin by election are no disseisin till the election of the owner makes them so: as, when a tenant at will, instead of conveying in fee, makes a lease for years. 1 Johns. Cas. N. Y. 36.
10. The claim by adverse possession must have some definite boundaries. 1 Metc. Mass. 528 ; 10 Johns. N. Y. 447. There ought t,o be something to indicate to what extent the adverse possessor claims. A sufficient in closure will establish the limits. 7 Serg. & R. Penn. 129. But it must be an actual, visible, and substantial inclosure. 4 Bibb, Ky. 544 ; 2 Aik. Vt. 364 ; Mo. 166. An inclosure on three sides, by a trespasser as against the real owner, is not enough, 8 Me. 239 ; 5 Md. 256; nor is an unsubstantial brush fence, 10 N. H. 397 ; nor one formed by the lapping of fallen trees. 3 Mete. Mass. 125 ; 2 Johns. N. Y. 230. And where the claim is by possession only, without any color or pretence of title, it can not extend beyond the actual limits of the inclosure. 3 Harr. & M'H. Md. 621; 5 Conn.
305; 28 Vt. 142 ; 6 Ind. 273. And this must be fixed, not roving from part to part. 11 Pet. 53.
71. Extension of the inclosure within tha time limited will not give title t,o the part included in the extension. 2 Harr. & J. Md. 391 ; 8 Ill. 238. Where, however, the claim rests upon color of title as well as possession, the possession will be regarded as coextensive with the powers described in the title-deed, 11 Pet. 41 ; 4 Mas. C. C. 330 ; 3 Ired. No. C. 578 ; 2 Ill. 181 ; 13 Johns. N. Y. 406; 5 Dan. Ky. 232 ; 4 Mass. 416, unless the acts or declarations of the occupant restrict it. 22 Vt. 357. But the constructive possession of land arising from color of title cannot be extended to that part of it whereof there is an actual adverse possession, whether with or without a proper title, 28 Penn. St. 124; 16 B. Monr. Ky. 72 ; 1 Ired. No. C. 56; 4 Sneed, Tenn. 584 ; 18 Vt. 294; nor will a subsequent conflicting possession, whether under color of ' title or not, be extended by construction be yond the limits of the actual adverse posses sion for the purpose of defeating a prior con structive possession. 6 Cow. N. Y. 677 ; 11 Vt. 521.
72. Nor can there be any constructi adverse possession against the owner vrhen there has been no actual possession which he could treat as a trespass and bring suit for.
3 Rich. So. C. 101. A trespasser who after wards obtains color of title can claim con structively only for the time when the title was obtained. 16 Johns. N. Y. 293. This doctrine of constructive possession, however, applies only to land taken possession of for the ordinary purposes of cultivation and use, and not to a case where a few acres are taken possession of in an unoultivated township for the mere purpose of thereby gaining title to the entire township. 22 Vt. 388; 1 Cow. N. Y. 286; 6 B. Moor. Ky. 463.
73. In fine, with a little relaxation of strict ness in favor of the ownerof wild, remote, and uncultivated lands, 4 Mass. 416, to gain title by possession it must be adverse, open, or public and notorious, and not clandestine and secret, exclusive, uninterrupted, definite as to bound aries, and fixed as to its locality. Color of title is any thing in writing, however defect ive, connected with tne title, which serves to define the extent of the claim, 19 Ga. 8; 18 Johns. N. Y. 40; 8 Cow. N. Y. 589; and it may exist even without writing, if the facts and circumstances show clearly the character and extent of the claim. 17 III. 498 ; 6 Ind. 273.