29 N.C. 189 | N.C. | 1847
The judgment must be affirmed. This action is founded on the possession of the plaintiff; and where he is in the actual occupation of the locus in quo another person cannot justify an entry upon him, unless it be upon a better title in himself or as the servant of him who has the title, because the law will protect a peaceable possession against a mere wrong-doer. But that principle has no application to a case in which there is no actual occupation by the plaintiff and the possession is in fact vacant; for in such a case the law adjudges the possession to be, constructively, with the title. At one time, indeed, it was doubted whether this action would lie at all where there was no actual possession and the locus in quo was in a wild state. But from the necessity of the case it has long been held in this country, not that the action will lie without possession, but that it will lie upon that possession which the law implies to be in the owner of land when no other person is in point of fact on it. Therefore, in order to entitle one to maintain trespass quare clausum fregit when he has no (191) occupation of any part of the premises, he must show a title in himself from which the law can deduce that, constructively, he has the possession. Hence it is manifest that in this case the plaintiff could not recover. There was no residence, inclosure, or occupation of the premises by any person, but the land was wholly unimproved, as far as we see. Then the law, which carries the possession to the title, carries it, of course, to the real title — that is, in this case, to Collins, and to him exclusively; because it cannot adjudge the possession to be in different persons at the same time merely by force of opposing claims to the title, and it must be in that person only who has the paramount title. Carson v.Burnett,
PER CURIAM. No error.
Cited: Williams v. Wallace,
