#### JOHN SMITH *vs.*EBENEZER INGRAM & AL.

Where surveys are made on any navigable water, the water shall form one side of the survey. And any island or islands in any navigable water may be entered, surveyed and granted. -

Where land is subject to entry and has been granted, the action of Trespass Q. C. E. lies, although the land is covered with water.

Where land is lapped by two deeds or grants, the adverse possession for seven years by a person, not being in possession of the lapped part, can give him no right against the superior title to the part so lapped.

One, who is in the actual or constructive possession of land, may recover damages from him, who dispossesses him, tho’ not in possession at the time of the action brought. No ulterior profits or damages can be recovered, until he regains the possession; and then the law, by relation, would adjudge him to have been in possession from the first ouster, and entitle him to damages for all the time the defendants wrongfully held the lands.

The cases of *Carson*v. *Burnett,*1 Dev. & Bat. 54, and *Graham*v. *Houston,*4 Dev. 232, cited and approved.

Appeal from the Superior Court of Law of Anson-County, at the Spring Term, 1847, his Honor Judge Bat-tue, presiding.

*176This was an action of Trespass *quare clausum fregit, to*which the defendant pleaded the general issue and *liberum tenementum.*

The plaintiff produced a grant, under which he claimed and which covered the *locus in quo,*dated in 1796, and then shewed a regular chain of conveyances to himself. The plaintiff’s grant included some small islands, rocks, shoals and the bed of Pedee river, where it is not navigable. It was in proof that the defendants, in the Fall of 1836, erected a dam and put in a fish trap, at the place in dispute, and which is within the boundaries of the plaintiff’s grant. It further appeared that they kept up this dam and continued to fish there, until the Spring of 1839, but whether they continued todo so, up to the time when the action wras commenced in the month of July of that yeaiv was matter of dispute upon the testimony- It was in evidence on the part of the plaintiff, that he erected a dam and put in a fish trap at or very near the spot, where the defendants’ dam had been erected, in the Spring of 1839, and that the defendants took out his trap and carried it off. The plaintiff claimed damages for the trespass committed by the defendants in erecting their dam in 1836, and for taking away his fish trap in 1839.

The defendants claimed title to the *locus in quo*under a deed from one Terry to Slaughter, exeutedin 1824 and a deed from the latter to E. Ingram made in 1836. The deed, under which the defendants claimed, included part of the same land as that covered by the plaintiff’s grant and included the *locus in qno;*and they proved, that those, under whom they claimed, had erected a dam, for the purpose of putting in a fish trap, on a part of the premises included in their deed, but not on the lapped part, and had used it for the purpose of catching fish for more than seven years before the suit was commenced. It did not appear that the plaintiff or those under whom he claimed, ever had actual possession of the premises,, included in his grant, until he erected his dam in 18&9,

*177The defendants objected to the plaintiff's .recovery. 1st. That the plaintiff’s grant was void, because the place granted was not subject to entry. 2nd. That the seven years’ possession of Terry and those claiming- from him under color of title, though not upon the lapped part, gave them a good title to all the land within the boundaries of their deed and of course to the *locus in quo.*3rd. That the plaintiff was not in possession of the *locus in quo,*at the time of the commencement of his suit.

The Court held that the first and second objections were untenable — that, as to the third, the plaintiff was entitled to recover for the entry by the defendants to erect their dam and put in their fish trap upon his premises in 1836; that, if the defendants were in actual possession of the *locus in quo*in 1839, when the suit was commenced, it could not be sustained for damages then committed, but that if the defendants had abandoned the possession of the *locus in quo*in the Spring- of 1839, and the plaintiff then entered and erected his dam and put in his fish trap, and the defendants afterwards took the trap and carried it away, he might recover damages for that injury also. The plaintiff had a verdict and judgment and the defendants appealed.

No counsel for the plaintiff.

*Strange,*for the defendants.

Daniel, J.

Where surveys are made on any navigable water, the water shall form one side of the survey. And any island or islands in any navigable waters may be surveyed and granted. *Rev. Slat. ch. 42, sec.*1. The grant, dated in 1796, under which the plaintiff claimed the land, does not cover any navigable water, whether we are to understand that term in its common law sense, or according to any meaning it has received in this State. The *locus in quo*was, we think, subject to entry and grant. And this action is well brought, for it lies, although *178the land is covered by water. *Co. Lit.*4, *Yelver*148. *Secondly,*we are of opinion, that the seven years possession of Terry and those under whom the defendants claim, under a color of title (not being on the *locus in quo*or on that part of the land, where the deeds of the respective parties lap on each other) did not give them a title to any part of the land contained in the lap, as the title of the plaintiff was the elder and better title and extended to the boundaries mentioned in his grant and deeds ; and as no adverse possession interfered with him within the scope of his boundaries. *Carson*v. *Burnett,*1 *Dev.*& *Bat.*546. The plaintiff, and those under whom he claims, were never at any time ousted of any portion of their land, so as to be put to their right of entry. The defendant and those under whom he claims had never taken any possession of the land claimed by the plaintiff so that an action of ejectment could have been maintained against him or them. How then can it be contended, that a possession by Terry and the defendants of land, which the plaintiff never claimed or had any title, deeds to cover, could be an actual adverse possession of those lands, or any part of them, lying within the boundaries of the plaintiff’s grant and deeds ? It cannot be so. If the defendants, or those under whom they claim, or either of them, had entered on that part of the land comprised in the lap, and continued in actual adverse possession for seven jmars of that, the plaintiff’s right of entry would have been tolled as to that; and then the defendant’s inferior title to the *lapped*part would have become the better title to that part. *Thirdly,*we think the charge of the Judge was correct upon the third point. The plaintiff was constructively in possession of the *locus in quo,*as he *had the*possession by virtue of the legal title, and the action of trespass *quare clausum fregit*is always brought, to recover damages for any injury to the plaintiff’s possession of lands. 'The unlawful entry of the defendants upon the plain*179tiff’s land, and then and there erecting the dam in the year 1836, was an injury to his *then*constructive possession. And although the plaintiff might not have been in possession of the land, either actually or constructively at the time of the issuing of his writ, he nevertheless might well maintain this action, if he was in possession of the *locus*at the time the injury or trespass was first committed by the defendants; for it is the damages sustained by the plaintiff, by the very act of dispossessing him of his land by the defendants, that he now seeks to recover. He was injured in his possession by that very act. *Graham*v. *Houston,*4 Dev. 232. No ulterior profits or damages, it is true, could be recovered, until he regained his possession ; and then the law', by relation, would adjudge him to have been in possession from the first ouster and entitle him to recover damages for all the time the defendants had wrongfully held the lands and kept him out of possession. If a man is dis-seized he may bring trespass against the disseizor, for the *act of disseizin.*2 *Rolle’s Ahr.*553. *Co. Lil.*257 (a.) *Com. Dig. Trespass,*B 2. *Roscoe on actions,*663. And, if he re-enter, he may have trespass against the disseizor *or*a stranger, for continuing *in*possession, for by the re-entry he re-vests the possession in "himself, *ab initio. Roscoe on actions,*663, 664, and the cases there cited.

Pbr Curiam. Judgment affirmed.