Majority
As to the first ground of defense we have often ruled and are still of opinion that the plaintiff is not barred by length of time, if the land were vacant at the time of the grant. It must be taken that persons in possession of such land hold it in order to preserve the possession for the State. Besides, the qualified preference given by the Act of Assembly [2 Del.Laws 1162] to such possessors shows that the law did not consider mere possession as a title and expressly subjects the land to the grant of the State unless the person in possession conforms to the terms of the Act.
As to the second point relied on, we conceive that it is within the discretion of the jury from the time and circumstances of the case to presume a grant of the land. We do not say the jury are bound to presume a grant for the land, but that they may presume one if the time and circumstances satisfy them that a grant ever was made.
Jury gave a verdict for defendant.