#### Thomas Cutts and Others *versus*Thomas Spring and Others.

A grantee of land from the commonwealth takes possession of more land than he is entitled to hold under his grant A trespass is committed on a part of the premises afterwards resumed by the commonwealth. It was holden, that the grantee was entitled to his action for the trespass, he being answerable to the commonwealth, in a suit for the mesne profits, or in some other way.

Trespass *quare clausum*fregit, and for cutting timber on a tract of land, in *Hiram,*in the county of *Oxford.*On the general issue joined, trial was had at the last October term, before *Thatcher,*J. The plaintiffs proved the cutting of the trees on the land described, their title to which they derived as follows: In 1771, the government of this then province granted to one *Benjamin Prescott*a certain tract of land, which he caused to be surveyed, and upon which he entered. In 1809, his son, *Henry P.,*conveyed the south ' *126easterly half thereof to the plaintiffs, who entered and became seised and possessed thereof, including the *locus in quo.*

The defendants offered to prove that, since the trespass was committed, the commonwealth had recovered * judgment, upon an inquest of office, against the plaintiffs, upon the ground that they, as assignees of said Benjamin, held and claimed more lands than they were entitled to hold under the said grant; and that commissioners, appointed pursuant to law, had as signed to the plaintiffs a tract of land, being part of what they claimed to hold, but not including the *locus in quo.*The judge refused to admit this evidence; and a verdict was returned for the plaintiffs, which was to be set aside, and a new trial had, if the said evidence ought to have been admitted.

*Mellen*and *Adams,*for the defendants,

argued that the plaintiffs, although in possession at the time of the trespass, were to be considered merely as tenants at will to the commonwealth ; and that the commonwealth being the party injured, the plaintiffs could claim at most but nominal damages. (1) In the case referred to, the Court say, “ A disseisee may maintain trespass for injurious acts subsequent to the disseisin, and while he was out of possession, after he has reentered.” But the case at bar is still stronger, for the commonwealth cannot be disseised, and is still entitled to its action against the defendants, for this trespass done to its land while in the wrongful possession of the plaintiffs.

*Longfellow,*for the plaintiffs.

The defendants are mere strangers to the title in this land. The plaintiffs were not tenants at will. They were seised in fee against all the world, except the commonwealth. They, and those under whom they claimed, had been in the undisputed possession of the land for more than thirty years, which gave them theright of possession, which nothing short of an inquest of office could lawfully disturb. The commonwealth could not have trespassed for this injury, while the plaintiffs were thus possessed of the land; (2) for possession is necessary to support such action. The case of *Starr & Al.*vs. *Jackson*shows only that a tenant of the freehold can maintain trespass, although there be a tenant at will. It is not known to have been decided here, that the commonwealth * cannot be disseised. The plaintiffs, however, always considered themse’ves as holding adversely to the commonwealth, and not as tenants at will to it.

(1)

11 *Mass. Rep.*519, *Starr & Al.*vs. Jackson.

(2)

 1 *East's Rep.*244, *Graham*vs. *Peat.*

*By the Court.*

The grant of the government to *B. Prescott*in *1271771, and his surveying, fixing the bounds, and entering upon the land, gave him a seisin, although he included more land within his location than his grant conveyed to him. His title descended, with the possession, to his son, and the deed of this latter conveyed t.he seisin to the plaintiffs in 1809.

It is wholly immaterial to the defendants whether the location covered more land than the terms of the grant would warrant. The plaintiffs were seised as well as possessed, in regard to every one but the commonwealth — who might, or might not, reclaim part of the land located, as not conveyed.

The action, therefore, is rightly brought, and the value of the trees is the proper measure of the damages. For the commonwealth has a right to call the plaintiffs to account, by a suit for the mesne profits, or in some other way; and as the defendants were wrong-doers to the plaintiffs, these latter ought to be in possession of the value of the trees, as a fund to meet the claim of the commonwealth. If not called upon, they have a right to keep the money for their own use, being accountable to none but the commonwealth. (a)

*Judgment on the verdict.*

(a)

 Vide *Harper*vs *Charlesworth,*4 *B. & Cr.*574. — *Dyson*vs. Cottick, 5 *B. & A. 602.*