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should have actual possession in order to maintain a suit for trespass. One who has a reversionary interest in lands or chattels may have an action for an injury to his interest. It was so held in Ayer v. Bartlett, 9 Pick. 156, as to chattels. That the same is true as to lands, see Lienow v. Ritchie, 8 Pick. 235; Cannon v. Hatcher, 1 Hill (S. Car.), 260; Livingston v. Mott, 2 Wend. 605; Baxter v. Taylor, 4 Barn. & Ad. 72. And this, too, against a licensee of the tenant; for such an injury is waste, which determines the tenancy. Daniels v. Pond, 21 Pick. 367, was the case of a removal of manure. See also Lewis v. Lyman, 22 Pick. 437, 442. So, too, an action lies by a mortgagee against one who removes trees under authority of the mortgagor, or a building erected on the land by the mortgagor after the execution of the mortgage. Page v. Robinson, 10 Cush. 99; Cole v. Stew art, 11 Cush. 181.

It is not material whether the property be in the possession of a tenant holding at will or otherwise. The nature of the tenancy does not affect the right of action of the reversioner; though under the old system of pleading it affected the form of his action. If the tenancy was at will, the owner sued in trespass; otherwise, in case. See Star v. Jackson, 11 Mass. 520; Hingham v. Sprague, 15 Pick. 102; Livingston v. Mott, 2 Wend. 605. That is, every trespass to the possession of a tenant at will is at common law as much an injury to the owner as to the tenant. It is otherwise now by statute in Massachusetts. See Hastings v. Livermore, 7 Gray, 194.

If the injury does not affect the reversion, the landlord cannot sue; the right of action belongs to the tenant. Baxter v. Taylor, 4 Barn. & Ad. 72;

Tobey v. Webster, 3 Johns. 468; Davis v. Clancy, 3 McCord, 422.

In Baxter v. Taylor, the plaintiff sued in case for an injury to his reversion. It appeared in evidence that the defendant had entered the close with horses and carts, and, after notice from the plaintiff to discontinue so doing, had claimed to do it in exercise of an unfounded right of way. The judge at nisi prius was of opinion that although there might be ground for an action by the plaintiff's tenant, the evidence did not show an injury to the reversion; and this ruling was held correct. The case of Young v. Spencer, 10 Barn. & C. 145, having been cited for the plaintiff, Taunton, J., said: "That was an action on the case in the nature of waste by a lessor against his own lessee. Here the action is by a reversioner against a mere stranger; and a very different rule is applicable to an action on the case in the nature of waste brought by a landlord against his tenant and to an action brought for an injury to the reversion against a stranger. Jackson v. Pesked, 1 Maule & S. 234, shows that if a plaintiff declare as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such a permanent nature as to be necessarily prejudicial thereto; and the want of such an allegation is cause for arresting the judgment. If such an allegation must be inserted in a count, it is material, and must be proved. Here the evidence was, that the defendant went with carts over the close in question, and a temporary impression was made on the soil by the horses and wheels. The damage was not of a permanent, but of a transient, nature; it was not, therefore, necessarily an injury to the plaintiff's rever

sionary interest." As to the claim of a right of way, to the assertion that, if the action was held improper, this would be evidence of a right against the plaintiff in case of further controversy, the learned justice replied, "Acts of that sort could not operate as evidence of right against the plaintiff, so long as the land was demised to tenants, because, during that time, he had no present remedy by which he could obtain redress for such an act. He could not maintain an action of trespass in his own name, because he was not in possession of the land, nor an action on the case for injury to the reversion, because in point of fact there was no such permanent injury as would be necessarily prejudicial to it. As, therefore, he had no remedy by law for the wrongful acts done by the defendant, the acts done by him or any other stranger would be no evidence of right as against the plaintiff so long as the land was in possession of a lessee." See Dougherty v. Stepp, 1 Dev. & B. 371.

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(c.) Constructive Possession: action may also be maintained where the possession of the plaintiff is only constructive. In Davis v. Clancy, 3 McCord, 422, it was held that evidence was proper which should make it appear that the person in actual possession of the premises had been put there merely as agent of the plaintiff, for the purpose of holding possession for the plaintiff and to protect the property from depredation. And it was said that though such agent were allowed to cultivate a part of the land for himself, while the part so cultivated might be considered as in his possession, so as to prevent an action by the owner for an injury not affecting the reversion, the rest was to be regarded as in the possession of the

landlord, so as to enable him to sue for any, the slightest, injury.

In Bulkley v. Dolbeare, 7 Conn. 232, the plaintiff sued in trespass for the cutting down and carrying away certain trees from his land which, it appeared, was in the actual possession of another; whether as a disseizor or tenant was not clearly shown. The action was upheld. The general property in the trees, it was said, was, after severance, in the plaintiff, the owner of the land. (See Gordon v. Harper, 7 T. R. 9, 11.) And it was established law that the person who had the general property in a personal chattel might maintain trespass for the taking of it by a stranger, though he never had the possession in fact; for a general property in a personal chattel draws to it a possession in law. Bro. Abr. Trespass, pl. 303, 341; Latch, 214; 2 Bulst. 268; Bac. Abr. Trespass, C. 2.

In accordance with the doctrine of the above cases, a party in possession of an enclosed piece of land may have an action for a trespass committed in his adjoining, though unenclosed, woodland. Penn v. Preston, 2 Rawle, 14; Machin v. Geortner, 14 Wend. 239. See also Gambling v. Prince, 2 Nott & McC.138; Jepherson v. Dryden, 18 Pick. 385. (In the last named case it was held that a conveyance of land and a mill privilege by metes and bounds, “together with the privilege of a dam," gave the grantee such an interest in that part of the grantor's land not included within the metes and bounds, but upon which the dam extended, as would sustain trespass quare clausum against the grantor for cutting that part of the dam away.)

Another example of constructive possession is found in Phelps v. Willard, 16 Pick. 29. There the plaintiffs agreed to furnish one Burbank with a machine,

and to put it up in perfect order in the latter's mill. The latter was to cart the machine to his mill, and, if satisfied with it, to pay for it; otherwise the plaintiffs were to take it away. Before it was entirely put up and completed, it was tried, and did not in that condition give satisfaction. It was objected that the plaintiffs had not sufficient possession to maintain an action against an officer for attaching the machine as the property of the mill-owner; but the court ruled otherwise. According to the defendant's agreement, it was observed, the plaintiffs had a right to go into the mill to finish the machine, and the defendant could not maintain trespass quare clausum against them. “If a watchmaker," said the court, by way of illustration," puts up a clock in a house, under an agreement that if it shall keep good time the owner of the house will purchase it, we think that until the trial is made the watchmaker remains in possession so as to be able to maintain trespass."

So, too, the proprietor of lands adjoining a public highway has such a possession of the way as to enable him to maintain an action for an unlawful ploughing of the same. The right of the public is merely that of an easement; while the owner retains his right in the soil. Robbins v. Borman, 1 Pick. 122. See also Conner v. New Albany, 1 Blackf. 88. And the owner of lands through which a turnpike road has been run may also maintain trespass against the turnpike corporation or its servants acting for it for the removal of herbage spontaneously growing by the roadside after the completion of the road. Adams v. Emerson, 6 Pick. 57. The locus in quo, the court observed in this case, although part of a turnpike road, is the soil and freehold of the adjacent owner,

subject merely to the public easement and the right of the turnpike corporation to construct a convenient pathway, and to keep it in good repair. To accomplish these purposes the corporation might dig and remove from place to place, within the limits laid out for the road, sand and gravel and turf; but the right of herbage, and the right to trees, mines, &c., belonged to the owner of the soil.

The owner of the land cannot maintain an action for the mere temporary and not improper obstruction of the road, however. Mayhew v. Norton, 17 Pick. 357; O'Linda v. Lothrop, 21 Pick. 292.

In Bradish v. Schenck, 8 Johns. 151, the defence to an action of trespass was that the plaintiff had let the locus on shares to a third person, and therefore had not possession. But the court held that the letting of land on shares, if for a single crop, did not amount to a lease; and the action was therefore considered proper.

It has been held that a widow remaining in the mansion-house, as allowed by statute, but having had no allotment of dower, cannot maintain an action for trespasses committed outside of the enclosure, though within the boundaries of the tract belonging to her late husband. Carey v. Buntain, 4 Bibb, 217. "Instances no doubt are frequent," said the court, "where an entry on part of a survey will operate to give a possession in fact of the whole, and proof of such an entry will be sufficient evidence of possession to maintain an action for trespass committed on any part. The present case appears not, however, to be of that character. Mrs. Buntain, the widow and plaintiff in the court below, cannot, according to any principle, have been possessed beyond the limits

of the plantation. At common law, it is true, she would be entitled to dower of the lands of the deceased husband, but she could thereby have had no several interest in any particular part; and according to the most approved authorities, until dower assigned, she had no right of entry. See 2 Bac. Abr. 375, and the authorities there cited. The statute of this country, it is true, has permitted the widow to tarry in the mansion-house and plantation, rent free, until dower is assigned; but as at common law she would have had no right of entry until then, her remaining in the mansion-house should be taken consistent with the statute, and her possession consequently to the limits of the plantation."

A party who is in possession of land without title can have no constructive possession beyond the limits of his actual occupation; and therefore where a man, having possession of the south end of a lot, but without title, cut timber on the north end of the lot, the whole of which he contended was within his constructive possession, it was held that he was liable to the owner in trespass. Aikin v. Buck, 1 Wend. 466.

(d.) Cotenants. One of several cotenants cannot maintain an action against the others for trespasses not amounting to an ouster, because all have equal rights of possession and property. Keay v. Goodwin, 16 Mass. 1; Allen v. Carter, 8 Pick. 175; Wilkinson v. Haygarth, 12 Q. B. 837; s. c. 16 Law J. Q. B. 103. If the act amounts to an ouster, an action will lie ; as in the case of the destruction of the common property, the effectual carrying away of a chattel (Jacobs v. Seward, Law R. 5 H. L. 464), and the digging of turf. Wilkinson v. Haygarth, supra. Otherwise of taking the vestura terræ or other

growing profits. Ib. The reason why the turf cannot be taken was stated in Wilkinson v. Haygarth to be that, if this could be done, the court must also say that a tenant in common could carry all the brick earth from the surface; and it would be impossible to say where he must stop.

In this case the action (for digging and carrying away turf) was brought against the licensee of a cotenant; and one of the pleas was "not possessed.” In overruling the plea, Lord Denman said that, if possession in such cases imported exclusive possession, one tenant in common might destroy the subjectmatter for his own benefit, and his cotenant be without this remedy. If the plaintiff had joined the cotenant in bringing the action, the latter would have released the defendant, whose act was committed under his orders. The plaintiff, he added, could recover such damages only as were proportionate to his interest in the property; but the wrong-doer had no right to put him to the proof of more than was necessary to show him injured by the wrong done.

The old authorities hold that trespass will not lie between cotenants for any thing short of a destruction of the common property; and this is still the rule in trover, according to the weight of authority. See note on Conversion, post. “Where two hold the wardship of lands or tenements during the nonage of an infant, if the one oust the other of his possession, he which is ousted shall have a writ of ejectment de gard of the moiety, &c., because that these things are chattels real, and may be apportioned and severed, &c., but no action of trespass . . . for that each of them may enter and occupy in common, &c., per my et per tout, the

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lands and tenements which they hold in common." Littleton, § 323, and commentary thereon, Coke, Litt. 200 a; Shepard v. Ryers, 15 Johns. 501.

But this doctrine has been departed from, and it is now held, as was held in the principal case, Murray v. Hall, and as was said by Lord Denman in Wilkinson v. Haygarth, supra, that trespass will lie against a cotenant for an ouster. (Goodtitle v. Tombs, 3 Wils. 118, referred to in Murray v. Hall, stands upon the ground that a recovery in ejectment, as well between cotenants as in other cases, is conclusive of the right to mesne profits. Bennet v. Bullock, 35 Penn. St. 364; Camp v. Homesley, 11 Ired. 211; Carpentier v. Mitchell, 29 Cal. 330. See the consideration of this point infra. Before the St. of 4th Anne, c. 16, § 27, there was no remedy for the profits even through an ejectment. Coke Litt. 199 b. That statute gave the remedy by account, where the defendant had taken all of the profits or more than his share of them. Ib., note; Silloway v. Brown, 12 Allen, 30, 38.) See also Silloway v. Brown, 12 Allen, 30; Bennett v. Clemence, 6 Allen, 18; Marcy v. Marcy, 6 Met. 360; Filbert v. Hoff, 42 Penn. St. 97; Dubois v. Beaver, 25 N. Y. 128; Odiorne v. Ly ford, 9 N. H.

511.

According to Littleton and Coke, as above cited, there was a distinction between chattels real that were severable and chattels real entire. In the latter case there was no remedy by law for an ouster; and it is, therefore, worthy a quare whether the doctrine of Murray v. Hall, which is placed upon the ground that an ejectment is maintainable, would extend to chattels real which cannot be severed, or to chattels personal, as to both of which Littleton and his commentator make the rule the same. See

Bennet v. Bullock, 35 Penn. St. 364, 367, where the court suggest that trespass lies only for mesne profits or where there has been a total destruction of the common property.

The court of Vermont, it is to be observed, have expressed the opinion, in accordance with the view of Littledale, J., in Cubit v. Porter and the old authorities, that trespass quare clausum will not lie between cotenants. Wait v. Richardson, 33 Vt. 190. And that was the case of a chattel real which was severable, and had in fact been several; the action being for the cutting and carrying away timber from a lot held in common by the parties. But, as Mr. Freeman suggests (Cotenancy, § 299), there is, probably, a distinction between those cases where the severance and carrying away of the chattel real amounts to a practical destruction, or severance of the common property, — that is, where the chattel carried away is the essential part of the common property, — and where the act has no substantial effect upon it. And the carrying away must be effectual, so as to place the chattel beyond the lawful reach or control of the plaintiff. Jacobs v. Seward, Law R. 5 H. L. 464, where the defendant carried away hay from an enclosure and put a lock upon the gate, and it was held that this was not a sufficient ouster.

The withholding of possession by one cotenant from his companion is considered as equivalent to an ouster; and an action will lie for this equally with the case of an expulsion. Silloway v. Brown, 12 Allen, 30; Marcy v. Marcy, 6 Met. 360; Bigelow v. Jones, 10 Pick. 161; Doe v. Prosser, 1 Cowp. 218; Jacobs v. Seward, Law R. 5 H. L. 464; Clason v. Rankin, 1 Duer, 337; Noble v. McFarland, 51 Ill. 226; Har

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