Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-03
DECISIONS OF THE SUPREME COURT.
OFETClAL.
Decisions of she Supreme; Court Of the
state of Tennessee, at Knoxville, Sep.
temoer Terms 1850.


Decisions of the Supreme, Court OF tho
state of Tennessee, at Knoxville, Sep.
temDer Terms 1850.
Allen vs.. susOug.
This was an action of trespasss, for breaking and
entering the plaintiffs close Verdict for the plain
tiff and appeal in error by the defendant.
The material facts appear to be, that Susong the
plaintiff below, had partly enclosed a piece CT
ground over which road-rOccasonally used by u o
public, but, which had never been established by
law passed. A fence had been erected on one
side remaining open, at the time of the trespass
complained of; the plaintiff having been arrested
in the completion of the enclosure by supersedeas
issued from the Circuit Court in pending litiga-
ton. The fence at one end crossed the road.
In this state of the locus In quo, the defendant
Allen caused the fence which crossed the road to be
thrown down, so as TO admit his wagon and team to
pass along, near to the track of the road. This
is the ground of the action.
Susong failed to show any title, and we must take
it for the purposes of the present determination
that he had no title to that part of the soil which
the road passed or on which the part of the fence
thrown down by Allen stood. Whether or not, upon
this state Of the facts an action of trespass qudre
cIdnsa fTegit can be maintained, is the sole ques
ton presented by the record for determination
1t is conceded by all the authorizes that proof of
an actual and exclusive possession by the plaintiff,
even though it be without title and by wrong, is saf
fcient to support tressPass against mere stranger
sion in himself nor authority from the legal owner
of the soil. Greenleaf EV, sec. 61s. g
The question then is, had the plaintiff, upon tie
facts stated such actual possession of the locus
quo at the time of the alleged trespass?
What constitutes an actual trespass? This, 1t
must be admitted, Is rather nice and difficult
question. In our cases upon the statute of limita
tatons and the statute of orcbe entry and detaner
it is settled that person may have actual possess
sion by having field enclosed by fence g Ierg.
e Lo,r n otz nY100
So he may have actual possession of house by
fastening the doors and windows, though no one oc-
cupy it. Ibid. But the fence must be substantial
enclosure. 8 Yerg. 297, 4Ol. Johns Rep: 234,
239. 10 Johns Rep. Al. Cow. zig; And II the
doors of the house be left 0pen 1t VIII not DE suf-
cient. Yerg. 96 l Sneed 246.
If the same character of actual possession be re-
ouired in the case of person who relies alone upon
his possession de dcto to maintain an action OF tres
pass as held necessary in the above cited cases
under the statute of limitations and of forcible
entry and detainer-and-w we are aware Of no just
principle If distincton-then it would seem neces-
sariIy to follow that this action cannot be main
tanned. ssla1. a.
If a substantial enclosure of the field was requi.
site To constitute an actual possession, it Is clear
that the plaintif had no such actual possession.
The field was not enclosed; and whether unenciosed
on one side more less, Is unlmportant II ls suf-
ficient that the enclosure was not compiete Nor
was il of any more importance that the plalntiff
was prevented from coinPe'inS suo ,o. -. ~
the process served upon him.. Simple matter OF
fact that the field not enclosed az the time Oh
| the alleged trespass no matter for what reason,
defeats his claim to actual possession at that time
II must be borne in mind that the doctrine of con-
structive possession can have no application to
case like the present, where the plaintiff has no
title and rests solely upon his naked and actual
possession. a.,
Upon the proof, the most that can be said for The
| nlaintiff-s case is, that he began to do an act
| which, if completed, would have constituted az
sctual possession but left of for the reason stated
before the act was completed, and OF tins nconi
plete act no legal effect can be predicsted he Il
IN no batter condition so far as the right to suppor
the present action is concerned, than II the act o
enclosure had never been begun.
The doctrine of the case Of West VS.. Lanier,
Humph. 762, has no application to this case
A true copy. W.R. CAswEII, Clerk <