#### DEN ON DEMISE OF JOHN R. GILLIAM *vs.*JOHN W. BIRD.

It is an inflexible rule, that whenever both parties claim’under the same person, neither'of them can deny his right, and then, as between them, the eider is the better title and *mast*prevail.

A house, or even the upper chamber of a house, may be held separately from the soil, on which it stands, and an action of ejectment will lie to recover it.

*A*street in a town or any other high-way, though now dedicated to the US8 of the public, may have been, and probably was once the subject of private property, and therefore the ordinary doctrine of estoppel will apply to if.

A deed from A. to B. estops, not only A., but all who claim under him.

A plaintiff in ejectment is entitled to a verdict, if he can shew a wrongful possession in the defendant of any part, no matter how small, of what he claims in his declaration.

The cases of *Murphy*v. *Harnett,*I Car. L. Rep. 105, *Ives*v. *Sawyer,*4 Dev. and Bat. 41, *Collins*v. *Benbury,*3 Ired.285, and *Huggins*v. *Ketehum, 4*Dev. and Bat. 415, cited and approved.

Appeal from the Superior Court of Law of Bertie County, at the Spring Term, *1848, his*Honor Judge Settle presiding.

This was an action of ejectment brought to recover a house and lot of land in the town of Windsor. The lessor of the. plaintiff showed in evidence a deed from one David Ryan to himself, and proved that the building and lot mentioned in that deed are the same as those described in the declaration. The said deed is dated 4th Feb. 1841. He then proved that in 1843, at a sale of said David Ryan’s property, one George S. Holley was present and requested John Freeman, the sheriff, to put up for sale the interest of the said David Ryan either in the building alone, or in it and the ground on which it rested, and the said lot of" land; whether he requested any thing more than the building tobe put up,there was conflicting testimony. The said *281John Freeman therupon complied with said request and the said George S. Holley became the purchaser. The said Holley afterwards rented the said house to Dr. Robert H. Smith, who went into possession as tenant of said Holley, and continued in possession up to the time of the bringing of this action ; first as the tenant of said Holley, and then as the tenant of the defendant, who had purchased of Holley whilst Smith was in possession. The defendant proved that the ground on which the building stood, and the said lot of land, formed, as early as 1S15, a part of one of the public streets of the town of Windsor; that in 1832, or 1833, the building was placed where it now stands ; that from the said year 1S15, up to the year 1835,or 1836,the said street continued to be used as a public street, except that part of it covered by the said building after the year 1832 or 1833 ; that in 1835 or 1836, the fence enclosing said lot of land was put up. It was then proved that Smith, as the tenant first of Holley, then of Bird, who purchased of Holley, had been in posession of the said building, three years next, before the beginning of this action. The defendant contended, that the plaintiff could not recover; first, because Smith, the tenant of Holley and Bird, having been in possession of the said building more than three years before the commencement of this action, then if the jury should believe from the evidence, that the building only was sold, and not the ground on which it rested, nor the lot, the building is to be considered as personalty, and the defendant is protected by the statute of limitations.

Secondly, that this action cannot be sustained for the building without the ground on which it rests or the lot of land.

Thirdly, that the plaintiff had not made out a title for the ground on which the building was, and the lot belonged to the public.

Fourthly, that the ground on which the building stood, and the said lot, being part of a street, was not the *282subject of a grant, and therefore no estoppel could arise, although poth parties might claim under the same person.

Fifthly, as no deed was shown from saidjFreeman, sheriff, to said Holley, nor from Holley to the defendant, the de-' fendant was not estopped.

Sixthly, if the jury should be satisfied from the evidence, that Holley claimed only the building, and not the ground on which it stood, nor the lot, the defendant was not estopped.

His Honor instructed the jury, that the statute of limitations applied to the form of the action, and as this was an action of ejectment, the right of entry of the real owner was not barred until after seven years adverse possession, of the defendant under colour of title ; that, whether the deed conveyed the house or the lot of land, was a ques-tson for the Court and not for the jury ; that the deed from Ryan to the plaintiff conveyed an interest in real estate which could be recovered in an action of ejectment only; that as to the 3d, 4th, 5th, and 6th objections made to the plaintiff’s recovery, his Honor instructed the jury, that the land, upon which the house stood, though formerly a part of the.public street of the town of Windsor, was the subject of a grant, as all land in the State not covered by water was subject to entry; that though the plaintiff might not have the real title,yet as the plaintiff purchased the property of Ryan, if Holley purchased it as Ryan’s property, and, claming title under Ryan, leased it to Smith, and afterwards sold it to the defendant Bird, that Bird would, as against the plaintiff, be estopped to deny Ryan’s title, and that, in order to create an estoppel, a deed was not always necessary. But whether Holley claimed the title of Ryan, and whether he afterwards leased it to Smith, were facts for them to find.

The jury rendered a verdict for the plaintiff Rule for a new trial. Rule discharged and judgment according to the verdict. Appeal to the Supreme Court.. ■

*283
      *(Copy of the Deed from Ryan to Gilliam. )*

I have this day bargained and sold to Doctor John R. Gilliam for and in consideration of the sum of four hundred and fifty dollars all my right, title and claim to the building now occupied by negro Tom and formerly occupied by Doctor John Haywood and known as Haywood’s shop, and do convey all the interest that I may have had to the ground occupied or covered by the house as well as the land enclosed by the fence around the building. In witness, &c. 4th Feb. 1841.

DAVID RYAN, (Seal.)

*Iredell,*for the plaintiff.

*P. H. Winston, Tun.,*for the defendant.

Battle, J.

Many objections were urged against the recovery of the plaintiff’s lessor in the Court below, and have been again pressed in the argument before us. We have given to them a due consideration and have carefully examined the reasons, which have been brought to their support. But, after all, we are compelled to say that they do not satisfy us that, the defendant’s case can be exempted from the operation of the inflexible rule, that whenever both parties claim under the same person, neither of them can deny his right, and then, as between them, the elder is the better title and must prevail. *Murphy*v. *Barnett,*1 Car. Law Repos. 105. *Ives v. Sawyer,*4 Dev. and Bat. Rep. 51. The defendant’s counsel, acknowledging the force of this rule, in all the cases to which it can apply, has tasked his ingenuity to show that his case does not come within it. Let us see to what extent he has succeeded. The first and second objections may be considered *together, for*whatever is an answer to one, is an answer to both. They must assume, that a house, separate and distinct from the ground on which it *284stands, is personal property. But that is not so. The ownership of land is not confined to its surface, but extends indefinitely, downwards and upwards. *Cujus est solum, ejus est usque ad cesium, 2*Black. Com. 18. It includes not only the ground .or soil, but every thing which is attached to the earth, whether by the course of nature, as trees' and herbage, or by the hand of man, as houses and other buildings. *Co. Lit.*4, *a.*A house, or even the upper chamber of a house, may be held separately from the soil, on which it stands, and an action of ejectment will lie to recover it. 3 *Kent's Com.*401, note e. The other objections are urged more particularly against the application to this case of the doctrine of estoppel. It is said that the lot, upon which the house in controversy stands, is a part of one of the public streets of the town of Windsor; that a public street-is not the subject of a grant by the State, and cannot of course become the property of a private individual, and that therefore no estoppel can arise in relation to it. In support of this argument the counsel relies upon the proposition laid down by this Court in *Collins*v. *Benbury,*3 Ired. Rep. 285, that “ it is very clear that a grant of a several fishery in the ocean or other navigable water by an individual, who could not acquire it from the State, must be merely void ; and therefore it cannot estop.” The cases are widely different, and the admission of the one furnishes no ground of support for the other. A several fishery in the ocean or in a navigable stream is not, and never has been, the subject of private ownership in this State, because land covered by a navigable water course, has always been expressly excluded from entry, and a grant of it by one individual to another would therefore exhibit on-its face its own *nullity.*But a street or any other high-way, though now dedicated to the use of the public, may have been, and probably was, once the subject of private property, and a grant of the soil over which it passes need not, and ordinarily would not, ex*285pose its own invalidity. This being so, the decisive answer to the defendant’s argument is, that he is just as much estopped from showing that the title is out of the plaintiff’s lessor, and in the public, as that it is in any private person. It is said again, that the defendant is not estopped, because it does not appear that Holley, from whom he purchased, ever took a deed from the sheriff, or that he ever executed one to him. This objection is founded upon a misapprehension of the manner in which the estoppel arises in this case.

The deed from Ryan to the plaintiff’s lessor estops Ryan from disputing his grantee’s title, and the same estoppel extends to all persons who claim from or under Ryan, whether by deed or otherwise. *Murphy*v. *Barnett, ubi supra.*Holley took possession, by naans of his tenant, of the house which he purchased at the sheriff’s sale as the property of Ryan, and until the contrary appears, ho must be presumed to have entered under the title acquired by his purchase. He cannot then dispute the title of Ryan, and that title had been previously conveyed to the plaintiff’s lessor.

Another position is assumed in the argument here; that the deed from Ryan to the plaintiff’s lessor conveys only a life estate, and that Holley purchased only the reversion in the house, that being all the interest, which Ryan then had in it, and that the estoppel could not extend to such reversion. All this may be true, and yet it cannot avail the defendant, because his vendor, Holley, entered into possession of the house immediately after his purchase, and he must therefore be taken to have claimed a present, and not a reversionary interest.

The last objection is clearly untenable. In the argument it is said, that Holley purchased, and took possession of the house only, and not the lot on which it stood, and that consequently he could be estopped for the house only. But that is sufficient for the lessor’s purpose. He is entitled to a verdict, if he can show *&*
      *286wrongful possession by the defendant of any part, no matter how small, of what he claims in his declaration. *Huggins*v. *Ketchum,*4 Dev. and Bat. Rep. 415. The verdict and judgment in an action of ejectment, do not necessarily specify the part, for the trespass upon which the defendant is found guilty, and the lessor of the plaintiff must, in such case, take out his writ of possession at his own peril.

We have thus considered all the objections urged by the defendant against the recovery of the plaintiff’s lessor, and finding them untenable, we must affirm the judgment.

Per Curiam. Judgment affirmed.