[In the succeeding case, the want of a plat connected with the papers, renders the precise points upon the question of location, scarcely intelligible. A plat seems to have been exhibited to the Court of Appeals, upon the argument of the case, and is referred to in their opinion; but none has come to the hands of the Reporter — and he has been obliged to report the case as well as he could without one.]

#### Wm. Johnson *v.*A. M'Ilwain.

The action of trespass, *quare clausum fregit,*is the appropriate action for a violation of the plaintiff’s possession of lands. If he be in the *actual occupancy,*he can maintain the action *without title.*If his possession be *constructive*only, and not actual, he cannot maintain it without proof of title.

In the execution of a writ of *habere facias possessionem,*the sheriff should put the plaintiff into full possession; and to do this, he may put out not only the defendant, hut all others, *it seems,*who are in possession. This he is authorised to do by the *writ;*but the *title*of no person is in any way affected, except that of the defendant and those who hold under him.

One of the rules of *location*is, “ that the line shall be run according to the boundary; and that the boundary is to be observed, although the course be different.” In Atkinson v. Anderson, 3 M’Cord. R., 323, it was held, “ that where a junior grant called for a senior as a boundary, the boundary should be followed, although it was a zigzag instead of a straight line,”— and in Martin v. Simpson, Harp. R. 455, it was decided “ that where the *369boundary called for, extends only along a part of the line, then the boundary is to be observed as far as it goes, and the balance of the line is to be run according to the course called for on the plat.

*Before EVANS, J., at Lancaster, Spring Term,*1839.

The following is the report of this case by his honor the presiding judge:

“ This was an action of trespass, *quare clausum fregit.*Two questions were made. 1. Could the action be maintained? 2. Was the land included within the plaintiff’s title? The facts upon which the first question depends were these: The plaintiff claimed the land as granted to one Fennell, 1st January, 1787. After the date of the grant, one M’Ganah occupied the land for forty years; from him there was a regular title to one Hugh M’Rory, who bought in 1826. — M’Rory left the State without paying for it. It was sold under executions in attachment, and purchased by the plaintiff. On the Fennell grant, there was a large plantation, parts of which had been occupied for many years. The field in dispute was cleared by Mr. Brey, eight or nine years ago; and at the time the plaintiff purchased, it was enclosed with the other lands by a common fence. After M’Rory ran- away, one Allen went into possession under a contract with Twitty, who was M’Rory’s security for the purchase money. Allen was in possession when Johnson, the plaintiff, bought. M’llwain sued Allen after Johnson purchased. Allen made no defence, and M’llwain recovered, of course, as his surveyor thought the land included in his grant. — ■ After the recovery a writ of possession issued, and the sheriff put M’llwain in possession, in March, 1837: that is, I understood it, he went on the ground, and no person being on the land in dispute, he told the plaintiff, M’llwain, he put him in possession. Pending the suit against Allen, Allen gave notice to Johnson, and Johnson was about to interfere and set up his title, but was prevented from doing so, by M’llwain telling him he would never disturb him, his object was to recover against Allen. In April, soon after the sheriff put M’llwain in possession, he planted the land, but without in any way detaching it from the rest of Johnson’s land. The only *370fence around it was Johnson’s fence, which, inclosed the rest ofhis fields. Johnson ploughed up what M’llwain had planted and planted the land himself. This was ploughed up by M’llwain. Johnson again ploughed up what M’llwain had planted, and planted the land himself. This remained undisturbed till August, when some one entered in the night and cut down the corn when it was fully grown. Whether this was done by M’llwain, was one of the facts submitted to the jury. I considered the land was in Johnson’s possession. It was within the same enclosure with his other fields, and he had the same possession of one as the other. His possession was in no way affected by the writ of possession against Allen, and, besides, it was expressly agreed by M’llwain that he would not disturb him by a recovery against Allen. If M’llwain, when he was put into possession by the sheriff, had made a *fence*around it and thereby detached it from Johnson’s possession, then Johnson might have been driven to his action of trespass to try title; but this was not done. The recovery against Allen did not affect Johnson’s title, and if he could have maintained trespass, quare clausum fregit, before the sheriff went on the land, he may do it afterwards. For these reasons I refused a motion for a nonsuit on the ground that the action was misconceived.

On the second question, which depends on the rules of location, I can only make myself understood by reference to the plat, which I suppose will be produced. The defendant claimed under a grant to one Nelson. The plat called for the Rogers grant as a boundary. The corner of the Rogers grant was a hickory, and the Nelson grant called for a hickory as a station. The course of the two lines was the same; but the Nelson line was longer than the Rogers line. Buckeloo, under whom M’llwain claimed, pointed out the hickory as the corner of the Rogers grant and a station of the Nelson. Besides this, the hickory is represented on the Nelson plat as near a branch. This is the fact with regard to the one in controversy. Thompson, one of the surveyors, thought it marked both as a station and corner; but Scarst, the other surveyor, thought otherwise. On the plat, the hickory corner at C. and the post-oak at F., are conceded to be corners of the Nelson *371grant. From C. the course will go to the Rogers grant at B.— The whole controversy was, how the line should be closed from B. and F. I was of opinion, and so charged the jury, that if they were satisfied the hickory was the station called for on the Nelson grant, then the true location was to run the course called for, from B. to the hickory at A., and then continue the line the same course until it intersected the line from along the course from F., which it would do at X. In this way the course and boundaries of the plat were preserved, and the only alteration made on the plat was to shorten the length of the line from the post-oak at F. This was the location established by the jury. The defendant contended, first, That the hickory was not the one called for by the Nelson grant; and as it was the older grant, he had a right to give it that location, which would give it the greatest quantity of land which could be included within any of the descriptions in his grant, and, therefore', if the hickory was not his station, he could take his distance on the line from F., and thus close by a line through the Rogers grant to B. Secondly, If the hickory at A. was his station, he was not to continue the course beyond' his boundary, but from the hickory might run along the other line of the Rogers grant to G., where the course from F. would intersect that line of the Rogers grant. This mode of locating the land would give the distended triangle to the defendant. This mode, it was contended, was in conformity with the principles of the case of Atkinson v. Anderson. That case, however, established no new rule; it is only an illustration of an old one — that boundary, as far as it goes, will govern course and distance; but when you get to the end of the boundary, the course must be resorted to.

I do not recollect what damages the jury gave. The jury were instructed, that if M’llwain cut down the corn at night, in the month of August, when it was nearly made, the jury ought to give full value, and they might, if they thought the case required it, add something to that sum by way of punishing the defendant.”

The defendant appealed, and now moved this court for a non-suit or new trial, on the following grounds:

*3721. Because there was no evidence of plaintiff’s possession of the premises, before the trespass complained of,

2. Because it was clearly proved by plaintiff’s own testimony, that M’llwain was in the actual *pedis possessio*of the-premises, and put there by the sheriff at the time of plaintiffs entry and of the trespass complained of, consequently trespass quare clausum fregit, will not lie without evidence of title.

3. Because even if the verdict of the jury, under which defendant was put in possession, was wrong, or could not affect the rights of plaintiff, still as it placed the plaintiff in the actual possession, the action cannot be maintained.

4. Because it is submitted, his honor erred in refusing the motion for a nonsuit, because the premises were embraced in one common enclosure with other fields of the plaintiff, (of which there was no proof till after the motion was made,) when there was no proof he had ever actually occupied the premises, and when it was proved defendant was in the actual possession.

5. Because his honor erred in charging the jury, that by the rules and principles of location, the defendant’s grant must be closed by running a straight line from to that being the course of the original grant, when it is *submitted he ought to have charged,*that as a pine corner was called for on the Rogers’ line boundary, beyond the point - that boundary must be pursued, regardless of its departure from the original course, until it would intersect with a line run from tq G.

6. Because the damages are excessive.

Curia,,per Evans, J.

There is little difficulty in this case, except on the question, how the lines are to be closed from the black jack corner at B, and B oak at F. In deciding this question, it must be borne in mind, that the Nelson plat calls for the Rogers grant, as a boundary, and not only represents that the Rogers grant lies on that side of it, but calls for the same course and a hickory station, old mark, near a branch, which on resurvey is found to be the corner of the Rogers grant. Then, according to any *373principles upon which locations are made, the line from B must run along the line of the Rogers grant to the hickory at A. In this way, the course, and the marked trees, are both preserved. But the boundary terminates at the hickory station, and the whole controversy between the parties is beyond this point. I take the rule to be this: the line is to be run according to the boundary, and the boundary is to be observed, although the course be different. In the case of Atkinson v. Anderson, 3 M'C., 223, it was held, that where a junior grant called for a senior as a boundary, the boundary should be followed, although it was a zigzag, instead of a straight line. In Martin v. Simpson, Harp. 455, it was decided that, where the boundary called for extends only along a part of the line, then the boundary was to be observed as far as it went, and the balance of the line was to be run according to the course called for on the plat. According to these principles, these lines were correctly run by running the line from B to the station at A, and thence continuing the true course, to X, where it intersected the line run along the course called for from F. In this way, the form of the plat is preserved, the course is preserved, and the marked trees are preserved. To locate the Nelson grant as contended for by the defendants counsel,'so as to include the triangle, A F G, (the subject of dispute,) would lead to a violation of the established principles of location. It can be done only by one of two ways — 1st. By running a .straight line from B to- G, the point where the distance from F is supposed to terminate. The effect of this would be, to run through the Rogers’ grant, to depart from the course, and wholly to disregard the marked trees, for the single purpose of preserving the length of the line F G. 2d. At the station A, to change the course of the line, and run from A to G, the effect of which would be, to add a sharp cornered triangle to the form of the original plat, and to convert the straight line, A X, into the two lines, A B and A G, which are nearly at right angles to each other: This cannot be done, unless the pine corner, called for in the plat, had been found. In which case, it is conceded, the course must yield to the marked trees. If this corner had been found at G, or at any other point on the line F G, then the course would be changed at A, so as to connect the hickory station with *374the corner by a straight line. But as the pine corner is not found, the lines can be closed in no other way than by running lines along the courses until they intersect.

The defendant’s counsel seemed to entertain a notion that, because the Nelson grant called for the Rogers grant as the boundary along the whole line on that side, he had a right to follow the boundaries of the Nelson grant to any point where the line from F would intersect. This would be true, if the pine corner was found in the line A G, or the line from A ran in such direction as still to leave the Rogers land a boundary on the same side. But this is not the case. If the course is changed at A, and the line A G be adopted instead of the line A X, then the Rogers grant becomes a boundary on two sides, instead of one. The only remaining question is, whether the plaintiff had such possession as enabled him to bring an action of trespass quare clausum fregit. The motion for a nonsuit on this ground was made before the plaintiff adduced his title, and should have been granted, unless the plaintiff had such possession as- would enable him to maintain this action. The facts were these: — The plaintiff was the owner of a tract of land, granted to one Fennell, which covered the land in dispute, unless it was included in the defendant’s > older grant. He purchased it at sheriff’s sale, as the property of M’Rory, who had- run away. After M’Rory ran away, one Allen got possession, but without any title. Before the plaintiff purchased, the defendant sued Allen in an action of trespass to try the title, which was pending when the sheriff sold. The plaintiff was about to interpose his title, to protect Allen against the defendant’s action, but desisted on the defendant’s promise that his recovery against Allen should not affect the plaintiff’s right. Allen abandoned the possession, and on the trial of the case, M’llwain recovered against him. A writ of possession issued, and the sheriff went with it, and finding no person there, he told M’llwain he put him in possession. On the Fennell grant there was a large plantation of cleared land enclosed within a fence. The land in dispute was within the same enclosure. The plaintiff’s house was within the same common fence, and at the time the sheriff went on the land with M’llwain, the plaintiff had the same possession of this land that *375he had of the rest of the cleared land. After M’llwain.was thus put into possession, 'without making any fence around it, so as to detach it from the rest of the field, he planted it in corn. The plaintiff ploughed it up and planted corn himself. This was ploughed up by defendant, who again planted the land. This was ploughed up a second time by the plaintiff, and the land planted and cultivated until August, when the defendant entered in the night time, as was alleged, and cut down the corn when it was fully grown. For this trespass the action was brought, and the question was — could trespass quare clausum fregit be maintained *without proof of title*? This form of action is used for a violation of the plaintiff’s possession; if he be in the actual occupancy he can maintain the action without title. If his possession be constructive, and not actual, he cannot maintain it without proof of title. I think in this case there can be no question that the plaintiff was in the actual possession of the land at the time the sheriff put M’llwain into possession. I do not think the plaintiff’s possession was at all affected by that act, because, in the first place, there was an agreement to the contrary; and, secondly, because nothing was done to oust the plaintiff’s possession. In the execution of the writ of possession, the sheriff should put the plaintiff into full possession; and to do this, he may put out not only the defendant, but all others who. are in. This he is authorized to do by his writ; but the title of no person is in any way affected, except that of the defendant, and those who hold under him. I think, however, it is unnecessary to discuss this part of the subject. There can be no doubt that at the time the corn was cut down and destroyed in August, the plaintiff was in the actual occupancy of the land, and that he was so before the defendant acquired any possession. He had, therefore, the oldest and the present possession when the trespass was committed, and could, therefore, maintain this action.

*Wright>*for the motion.

The motion is therefore dismissed.

Richardson, O’Neall, Earle and Butler, Justices, concurred