23 S.E. 896 | Va. | 1896
delivered the opinion of the court.
This is an action of trespass quare clausum fregit brought by W. W. Blackford in the circuit court for the county of Princess Anne against George T. Bogers, under the following circumstances: One Dr. Bogers, who died seised of a tract of land containing 963 acres, devised it to his two sons, George T.
It is impossible to say from this evidence that the plaintiff in error was in possession of the land in controversy on the 25th day of November, 1890, when the acts of trespass set out in his declaration are alleged to have been committed, or, indeed, that he was ever in possession, actually or constructively. The trespass complained of is an injury or wrong done to the possession ; and, to maintain it, there must have been possession— either actual or constructive — in the plaintiff when the trespass was committed. In Cook v. Thornton, 6 Rand. (Va.) 8, it was held that the action of trespass quare clausum fregit could not be maintained unless the plaintiff was shown to be in the actual