By the Court,

In the month of September or October, 1869, the plaintiffs grantor posted a. notice upon an unoccupied tract of about sixty acres of land in Lincoln County, stating that he claimed the same. The following spring he had the land surveyed, and in June or July, 1870, cut hay from it. He erected a canvas and brush shanty for occupation while engaged in hay-cutting, and thereafter tore it down and took away the canvas.

In November, 1870, the plaintiff purchased the premises and prepared the land for the coming hay season by burning the stubble thereon. This done, he left and did not return there until the latter part of June, 1871, when he remained a month or, under the most favorable construction of the testimony, six weeks. During this time he cut the hay, constructed sixteen or twenty rods of fencing upon the lower side of the tract and built a small cabin; three ditches, also, were made somewhere upon the land by means of a plow. Between the eighth and fifteenth of November he was upon the premises four or five days burning stubble; and again he was there about the first of December and remained over night. Neither the plaintiff nor his grantor ever resided upon the land, and their occupancy and improvement of it were confined to the times and acts stated.

' The testimony does not show that the boundaries were in any manner designated. No compliance with the act pre*23scribing the mode of maintaining and defending possessory action on public lands in this State” was shown; and, in an action of ejectment for the premises, this was the extent of the plaintiff’s proof of actual possession. The court refused a motion of non-suit. We think this was error.

The possession of the plaintiff as presented by the record is altogether too equivocal to maintain ejectment. It has frequently been determined that where possession is relied upon in ejectment it must be an actual, bona fide possession, a subjection to the will and dominion of the claimant as contradistinguished from the mere assertion of title and the exercise of occasional acts of ownership. The locality and appropriate use of the property may be important considerations in the determination of actual possession.

Judgment reversed and new trial granted.