#### ABEL COHOON & AL. *vs.*EDMUND SIMMONS & AL.

In order to entitle one to maintain trespass *quare clausum fregit,*where he' has no occupation of any part of the premises, he must shew a title in' himself from which the law can deduce, that, constructively, he has the possession.

The caso of. *Carson v>. Burnett,*1-Dev; and Bat. 546,. cited - and. approved;

Appeal from* the Superior Court of- Law of Tyrroll-County, at the Spring Term, 1847, his- Honor Judge Caldwell presiding.

This is an action of trespass, *quare clausum,fregit,*for-entering into-the premises and cutting down certain tim*190ber trees to make shingles, and was tried upon <s not guilty” pleaded. The plaintiffs gave in evidence a grant from the State dated in 1033 for the *locus in quo,*under which they claimed, Tho defendants then gave in evidence a grant for the premises from the State to Josiah Collins, bearing date in 3 796, The plaintiff's, thereupon, moved the Court to instruct the jury, that they were entitled to recover, notwithstanding the grant to Collins, because the defendant did not show that he claimed under the grant, But the Court refused to give tho instruction as prayed for, and directed the jury that they ought to find for the defendant, although he had not connected himself with the title of Collins. There was a verdict for the defendant, and from the judgment the plaintiffs appealed.

No counsel for the plaintiffs.

Heath, for tho defendants.

Ruffin, C. J.

The judgment must be affirmed’. This action is founded on the possession of the plaintiff; and tvhere he is in tho actual occupation of the *locus in quo',*another person cannot justify an entry upon him, unless it be upon a better title in hknsclf or as the servant of him who has the title ; because the law will protect a peacabie possession against a mere wrongdoer. But that principle has no application to a- case in which there is' no actual occupation by the plaintiff, and the *possession is*in fact vacant ;• for in such a case the law adjudges tho possession to be, constructively, with the title. At one' time, indeed, it was doubted, whether this action would Me at all, where there was no actual possession and the *locus in quo*was- in a wild state. But from the necessity @f the ease, it has long been held in this country, not that tho 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-point of fact *191on it. Therefore in order to entitle one to maintain trespass *quare clausum fregit,*when bo has no occupation of any part of the premises, he must show a title in himself, from which the law can deduce, that, constructively, he has the possession. Hence it is manifest, that in this case the plaintiff could not recover. There was no residence, enclosure, or occupation of the premises by any person, but the land was wholly unimproved, as far as we see. Then the law, which carries the possession to' the title, carries it, of course, to the real title — that is, in this case, to Collins and to him exclusively; because it cannot adjudge the possession to be in different persons at the same time, merely by force of opposing claims to the title, and it must be in that person only, who has the paramount title. *Carson*v. *Burnett,*Í Dev. & Bat. 546.

Pee Curiam. Judgment affirmed,