#### DANIEL MORRIS *vs.*WILLIAM HAYES.

The possession of one tract of land is no possession of another adjoining, the two being held by the same individual under different titles.

MakiSg *pole*bridges over a ditch on the side of a public road for driving cattle into a tract of swamp land, and the ranging of cattle on the same, and occasionally cutting a few timber trees, is not such a possession as will maintain the action of trespass.

Where one not having title, drives the hands of another, who has no title, off of land from where they are working, (except one who remains at another place on the land to take care of' the tools,) and the former continues at the spot where he had found the hands, and afterwards the owner of the hands returns and finds the plaintiff still on'the land where he had been left, and makes his hands resume their work in defiance of the remonstrances of the plaintiff, this is no such possession as will sustain the plaintiff’s action of trespass.

Tesespass *guare clausum*fregit, tried before bis Honor Judge DioK, at the Eall Term, 1854, of Hertford Superior Court.

The plaintiff read in evidence a deed to him from Kinsey Jordan, dated in 1831, for two hundred acres of land, embracing the *locus in quo :*and showed that for forty years he had held and enjoyed, under an undisputed title, a tract of land, adjoining that contained in the Jordan deed. He further showed, that these two tracts, adjoined another tract belonging to the defendant, and formed a part of its boundaries. The plaintiff had no distinct actual possession of the 200 acre tract by cultivation or residence, it being wholly swamp or *pocosin*land, though ever since the date of the deed from Jordan, he had used it as a range for his cattle, and had built several pole bridges across the ditch on the side of the public road which passed through it, and had also, occasionally got timber upon it. Erom these facts the plaintiff insisted that he was in possession of the Jordan tract including the *locus in quo.*

The plaintiff also adduced as evidence-the Act of Assembly passed in consequence of the burning of the court house of Hertford county, and contended that the true construction of that Act gave him such possession of this tract, as would enable plaintiff to maintain this action. Erom the following facts, the plaintiff also contended, that he had an actual possession *94of the *locus in quo*which would enable him. to sustain Trespass.

"When the plaintiff heard that the hands of the defendant were at work on the Jordan tract, he went to them in the swamp, and drove them into the public road which ran threugh the swamp. The defendant’s hands carried with them their tools, which they deposited in the road, and left one of their number in charge of them, while the remainder went off of the land: shortly after, they returned to the place where they had been at work, accompanied bjr the defendant, and where the plaintiff still was. Here the hands, against the commands and remonstrances of the plaintiff, were made to resume their work. Both plaintiff and defendant then left the premises, and this suit was then brought.

A verdict was entered in favor of the plaintiff with leave to set it aside, and enter a nonsuit if the Court should be of opinion against the plaintiff upon the foregoing case, and after-wards the Court being of opinion against the plaintiff on the questions of law reserved in pursuance of the agreement, set aside the verdict and ordered a nonsuit: from which judgment the plaintiff appealed.

*Smith*and *Winston, Jr.,*for the plaintiff.

*Moore,*for the defendant.

Nash, C. J.

The question referred to this Court, is, did the plaintiff in the trial below, show such a possession of the *locus in quo,*as to enable him to maintain this action ? The plaintiff claimed title to two coterminous tracts of land: he showed a good title to one, on which he lived and cultivated, and a deed of conveyance, in fee simple, from one Jordan to the other tract for two hundred acres of land, on which the said trespass was committed. The defendant has no title to the *locus in quo.*Several points were made by the plaintiff’s counsel in the argument here. The first was, that under the private Act of ’30-’31, his title under the Jordan deed, was complete. It is a sufficient answer to say that deed has no recitals to be verified by its execution. The construction and *95operation of that Act has been discussed, this term of the Court, in other cases; and we do not deem it necessary to enter into it here.

The conveyance from Jordan to the plaintiff, is a simple deed without marks and boundaries, and the case states there is no marked line between the land of the1 defendant and that of the two hundred acre tract. The second position taken by the plaintiff, is, that the possession of the. tract on which the plaintiff lived, gave him under the Jordan deed, the constructive possession of the two hundred acre tract, which is sufficient to maintain trespass against a wrong-doer; and to support this position, we are referred to the case of *Carson*v. Burnett, 1 Dev. and Bat. 546. This case does not bear out the plaintiff’s claim: it is rather an authority against him. It decides, that when a man holds two tracts of land, under different titles and different boundaries, the actual possession of one of the tracts is not the actual possession of the other. In the case before us, it will be seen, that the plaintiff had no actual possession of the Jordan tract.

The third point.is, that the plaintiff had the actual possession of the Jordan tract, and if his title had not ripened into an indefeasible one by actual possession for seven years, yet he had a possession sufficient to sustain an action of trespass against a wrong-doer. Eorthis we are referred to the leading case of *Myrick*v. *Bishop,*1 Hawks, 485. In that case the plaintiff exhibited a deed for the land on which the trespass was committed and an *actual possession*of part, but not for seven years: the Court decide that his *actual*possession extended to all the land embraced within his deed, there being no adverse possession in any part. What constitutes an actual possession of land, so as to sustain an action of trespass, is so fully stated in the case of *Loftin*v. *Cobb,*1 Jones’ R. 406, that we do not deem it necessary to minutely review the cases to which we have been referred ; they are all, with a few exceptions, reviewed and commented on in that case. Some few of them, we shall call attention to, as more peculiarly applicable to this case. In *Williams*v. Buchanan, 1 Ire. 535, the *96Court decide that *“*possession of land, is denoted by the exercise of acts of dominion over it, in making the ordinary use, and taking the ordinary profits of which it is susceptible in its present state, *such acts to be so repeated as to show that they are done in the character of*owner, and not of an occasional trespasser. In *Andrews*v. Mulford, 1 Hay. 311, the Court say, that putting cattle'to range on land’is not talcing possession. And in *Grant*v. *Winborne, 2*Hay. 56, the Court decide, that feeding cattle and hogs, or building hog-pens, or cutting wood from off the land, may be done so secretly, as that the neighborhood may not take notice of it, *and if they should, such facts do not prom an adverse claim, as all these are but acts of trespass.*In *Green*v. Harman, 4 Dev. 158, the Court intimate the opinion, that making turpentine as practiced on lands fitted for it, would be a sufficient possession for the reasons therein stated. . “ That it does not consist in single acts of trespass, like *cutting down frees and carrying them away.” .*

The case expressly states that no possession by residence or cultivation of the two hundred acre tract was shown by the plaintiff, it being wholly swamp pocosin land. The plaintiff relies, however, upon the principle, that he made such use of the land, as from its nature, being pocosin land, it was susceptible of; and'upon the fact, that he had thrown bridges across the ditches of the public road, which runs through the land at different places, to enable his cattle to pass over into the swamp, which they did, and *had also occasionally got timber upon it.*"We have seen that neither of these acts, in themselves, constitutes such a possession in the absence of a title, as will support an action for a trespass: that the depasturing of the cattle will not answer, neither will the cutting the timber *occasionally,*as stated in the case.

Rut it is said that when the plaintiff went upon the premises and ordered off the workmen of the defendant, that they all, with their tools, went into the public highway, and he was then in the *pedis positio*of the land covered by his Jordan deed. We do not concur in this proposition. The servants of *97the defendant did, upon the command of the plaintiff, leave the spot where they had been working, and went into the public highway; hut they there deposited their tools and left one of their number in charge of them, the rest went to the defendant, who soon returned with them, and by his direction *went, into the locus in quo,*and recommenced their work against the express remonstrance of the plaintiff. Erom the circumstances stated, the defendant, by his servants, were in the actual possession of the land when the plaintiff went upon it. The leaving of the premises by the servants, and their immediate return, accompanied by the defendant, was one continuous act. The workmen left their work,, with an evident *cmi-mus revertendi,*and when the plaintiff, went off. the premises, he left the defendant in the actual possession. If the plaintiff can maintain this action, then certainly, the defendant can maintain a similar one against him, for-going on the land and ordering his servants off; neither party had such possession as would support an action of trespass., The plaintiff had not acquired any legal title to the two hundred acre tract, and the acts set forth do not amount to a possession; they are mere acts of trespass. The case states there are no courses or distances in the deed to the plaintiff, which called for the lines of Sharp’s deed to the defendant, nor in that of the defendant which called for the lines of the plaintiff, *nor were there any marhed lines.*It further states,.that the deed from Sharp to the defendant described it as meeting the lines of the cultivated tract of the plaintiff, and as running along his line through a pocosin to Chowan river. The plaintiff contends that this is an acknowledgment on the part of the defendant, that the line in, the plat running due east from the south-east corner of the plaintiff’s cultivated land through the pocosin, was the southern boundary of the two hundred acre tract, and that this latter tract belonged to the plaintiff. We do not see how this fact betters the jolaintiff’s. claim. The admission by the defendant could not confer a title upon the plaintiff, and the case expressly states that the plaintiff’s title under the Jordan deed, had not ripened into full title, by a seven years’ posses» *98sion; neither could that deed to the defendant, establish the boundary of the Jordan tract, but simply acted as a declaration where his line was, or ought to be, for it is admitted there is no marked line there. Admit all, however, that the plaintiff asks upon this point, still the question remains upon which the action rests: had the plaintiff such a- possession as will sustain'an action of trespass against a mere wrong-doer? We think not.

There is no error .in the judgment below, and it is affirmed.

Pee Cueiam.