Opinion
June Term, 1821.
Possession alone is sufficient to maintain trespass against a wrongdoer.
TRESPASS, quare clausum fregit, from HALIFAX. The plaintiff exhibited on the trial below a deed, dated in 1812, to himself, including within its boundaries the locus in quo, and showed that he was in actual possession of a part of the lands, and had been, but for a term of less than seven years; and the trespass complained of was on the uncultivated part of said land, and on a part of which he had no actual occupation. The defendant showed no title or possession, but insisted that the locus in quo was vacant land.
The judge charged the jury that if the land was vacant the plaintiff could not have such a constructive possession under his deed as would enable him to support an action of trespass; but whether the locus in quo was vacant, he left for the jury to say; that if the land had been granted, then the plaintiff had a deed covering the land, and an actual possession of a part, though for less than seven years, and this gave him such a constructive possession of the whole as would enable him to support an action of trespass against a wrongdoer.
The plaintiff, having a deed covering the land where the trespass was committed, and being in possession of part within the boundaries of the deed, was in actual possession of the whole. The deed ascertained the extent of the possession. Whoever is in possession may maintain an action of trespass against a wrongdoer to his possession, because it is a possessory remedy, founded merely on the possession, and it (486) is not necessary that the right should come in question. 3 Burr., 1563; 1 East, 246. The judgment must be
Affirmed.
Possession alone is sufficient to maintain trespass against a wrongdoer. 1 East, 244; Graham v. Peat, and the cases there cited, to-wit, 3 Burr., 1563; 2 Stra., 1238; Wiles, 221. And it is consistent with first principles, and, in fact, would be strange if it were not so; for wretched would be the policy which required the title to be shown in every instance where the peaceable possession was disturbed by an intruder who had no right. It would tend to broils and quarrels, and the possessor would resort to force to defend his possession if the law afforded him no redress. It cannot, therefore, for a moment be doubted that the law is as stated above; and, for myself, I would go further, although my brethren do not deem it necessary to express an opinion on the point that possession is prima facie evidence of title; and until the contrary shall appear, sufficient to maintain an action on the title against a wrongdoer, ex. gr., an action of ejectment. This, of course, has reference to a case where the title is shown to be out of the State. I do not deem it necessary to say anything on constructive possession, for in the case before us the plaintiff's possession was an actual one. Possession of any part of a tract of land, there being no conflicting occupation, is an actual and not a constructive possession of the whole tract. If any part is adversely occupied under an inferior title, the possession under the good title extends to the actual adverse occupation. Here there was no adverse occupation, and the actual possession of the plaintiff was coextensive with his deed. A constructive possession is where a person has title, but no possession, and there is no one in possession, it being vacant; there the title draws to it the possession in law, or by construction of law. I think the rule for a new trial (487) should be discharged and judgment entered for the plaintiff.