By the Court,
We are clearly of aifinion, that no new trial® should be granted. At the time of the alleged trespass, the plaintiff having the fee, was constructively in possession of the land. It never was in the possession either of Davenport or of John Basto. The defendant, Ira Basto, never had, or pretended to have any claim to the land, but only to the pine timber growing upon it. The evidence warranted the inference by the jury, that the purpose of the defendants in entering upon the land, was to cut off the pine timber as soon as they could? and then to abandon the premises. No act of theirs evinces any intent to retain possession of the land any longer than was necessary for that purpose, or to claim it as their own. We
Let it be certified to the Circuit Court for St. Clair County, that the motion for a new trial ought to be denied.