This is especially true where the action is against a tortfeasor setting up no claim of title in himself to the land. Poe's Pleading, sec. 257; Tyson v. Shuey, 5 Md. 540; Miller v. Miller, 41 Md. 631; Gent v. Lynch, 23 Md. 58; Wilson v. Hinsley, 13 Md. 64; Blaen Avon Coal Co. v. McCulloh, 59 Md. 416; New Windsor v. Stocksdale, 95 Md. 196. In Gent v. Lynch, supra, where the action was trespass quare clausum fregit, it is said, on page 65 of the opinion: "Though at one time it was doubtful whether the action of trespass q.c.f. would lie at all where there was no actual possession, and the locus in quo was in a wild and unoccupied state, yet it has long been settled in this country, from the necessity of the case, not that the action will lie without possession, but that it will lie upon that possession which the law implies to be in the owner of land, when no other person is in fact, on it.
The owner himself cannot maintain trespass as to land in possession of a disseizor until re-entry. Gent v. Lynch, 23 Md. 64; Wilson v. Hinsley, 13 Md. 46-73. The tenth exception is untenable for the same reasons and for the further reason that it demonstrates that the locus in quo is within the lines of the plaintiff's deed.
Section 637, p. 566. See, also, to same effect, as to action of trover, Ward v. Wood Co., 13 Nev. 44; Jeffries v. Railroad Co., 34 Eng.Law & Eq. 122; Bartlett v. Hoyt, 29 N.H. 319; Burke v. Savage, 13 Allen, 408; Shaw v. Kaler, 106 Mass. 448; First Parish in Shrewsbury v. Smith, 14 Pick. 297, 302; Sutton v. Buck, 2 Taunt. 302; Duncan v. Spear, 11 Wend. 54, 57; Wincher v. Shrewsbury, 2 Scam. 283; Knapp v. Winchester, 11 Vt. 354; Harker v. Dement, 9 Gil. 12; Wilson v. Hinsley, 13 Md. 64, 73. The two cases from the United States supreme court cited on this contention, by opposing counsel, were cases of replevin; and in the latter the defendant connected himself with the true title,-- utterly inapplicable, as we have shown, to the case at bar.
* * * If the trespass has been committed through negligence or design, punitive damages in addition may be recovered." The gist of the action of trespass is injury to the possession, and therefore any person in actual and exclusive possession of real property at the time of the trespass, even though he had no title whatever, may maintain the action of trespass against any person who had no title himself or authority from the real owner. Tyson v. Shueey, 5 Md. 540, 550; Wilson v. Hinsley, 13 Md. 63, 73; New Windsor v. Stocksdale, 95 Md. 196, 208, 52 A. 596. However, the law is clear that the action of trespass q.c.f. is available for the trial of title to real property. West v. Pusey, 113 Md. 569, 571, 77 A. 973. Where the plaintiff in an action of trespass to real property claims to have the title and by virtue thereof the possession, and the defendant likewise claims the title and the possession, the controversy will be decided in favor of the party who is found to have the title, since the possession in such a case is dependent upon the title.
But a bare possessor of property is entitled to be protected against a mere trespasser without reference to the question of title. This principle has been repeatedly applied in actions of trespass at law; Tyson v. Shuey, 5 Md. 540; Wilson v. Hinsley, 13 Md. 64; New Windsor v. Stocksdale, 95 Md. 196; Carter v. Md. Pa. R. Co., 112 Md. 599; Stanton v. Lapp, 113 Md. 324; and it is equally applicable to suits in equity where the conditions are such in other respects as to justify the granting of equitable relief. 28 Am. Eng. Encyc. Law, 2nd Ed., 595, 573; 2 Waterman on Trespass, 346, 576. The rule in reference to the filing of exhibits in proceedings of this nature is that "where the right to an injunction is based upon a written instrument in the possession of the complainant, or to which he has ready access, the instrument itself, or a copy, ought to be filed with the bill, in order that the Court may see whether the complainant is entitled to the relief prayed."