
    (75 Hun, 235.)
    ZORN v. HAAKE.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Trespass—When Lies—Possession oe Locus in Quo.
    Where plaintiff and defendant, as owners of adjoining lots, take possession and construct a fence on what they suppose is the dividing line, and it afterwards proves to be entirely on plaintiff’s lot, plaintiff is not in possession of the portion of his lot on defendant’s side of the fence, and therefore he cannot maintain trespass quare clausum fregifc' as to such portion.
    Appeal from circuit court, Erie county.
    Action by John Zorn against Frederick W. Haake for trespass on land. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.
    
      Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    Stephen Lockwood, for appellant.
    Allen & Butterfield, for respondent.
   DWIGHT, P. J.

The action was trespass to lands. The parties owned and occupied adjoining lots' on the west side of Bailey avenue in the city of Buffalo. John Klein was their common source of title. He took title, in 1867, to the entire front of lots Nos. 51 and 52 of the Buffalo Creek reservation, on the Williamsville road, (now Bailey avenue,) being, by description, 20.50 ch., or 1,353 ft., in length along the west side of Bailey avenue. The strip was bounded on the' south by the south line of lot 51 and on the north by the south line of lot 53. The south line of lot 51 was the center line of Clinton street, which crossed the Williamsville road at right angles, and Clinton street was 66 feet wide; so that, deducting from the entire length of the strip, as given in Klein's deed, one-half the width of Clinton street, his front on Bailey avenue was, by description, 1,320 feet. In the years 1872, 1873, 1880, and 1881, Klein sold off and conveyed several lots, varying from 30 to 90 feet front, all located in succession from the north end towards the south, but in each of the conveyances the description commenced at the southeast corner of the lot conveyed, which was described as being so many feet from the north line of Clinton street. Thus, of the first lot,—conveyed to Johannah Buse,—the front line was described as commencing in the west line of the Williamsville road, (Bailey avenue,) 1,260 feet from the north line of Clinton street, and running north 60 feet, which, according to the description in Klein’s deed, would bring it to the north line of the. strip, or the south line of lot 53. So, in case of each successive conveyance, the width of the lot conveyed was added to that of all the lots previously conveyed, and, the sum being deducted from the whole 1,320 feet front, gave the distance from the north line of Clinton street, at which the description began. This, in effect, bounded each lot on the north by the south line of the lot next previously conveyed. The plaintiff’s lot was the seventh in the order of conveyance and of consecutive location from the north southward. The six lots previously conveyed had an aggregate front of 350 feet, and the plaintiff’s of 30 feet, and, accordingly, the description in his deed commenced at a point 940 feet north from the north line of Clinton street. The next conveyance was in 1881, to one Martin, of a lot 90 feet front, and the description began at a point 850 feet north from the north line of Clinton street. This was the lot subsequently conveyed to the defendant. The plaintiff took his deed in 1880, at which time there was a fence on the supposed south line of the lot north of him, and he took possession of 30 feet front south of that fence. Within a year or two thereafter he built a fence part way through from the front, on his supposed south line, 30 feet south from the fence above mentioned; and within a year or two of the same time, Martin, the defendant’s grantor, completed the fence through to the rear of their lots, on the same line. The plaintiff testifies that he built his part of the fence on the line which his grantor pointed out to him as his-south line, and that he and the defendant’s grantor agreed on the division of the fence between them, substantially as it was built by them at this time. The defendant took his title in 1890, taking possession up to the line of the fence last above mentioned. In January, 1891, he commenced to excavate clay for bricks in the north part of his lot, near the fence. He did so without objection from the plaintiff, until the latter became alarmed for the safety of hi» fence, and objected to his coming nearer the line. Upon the defendant’s persisting, the plaintiff procured a surveyor to locate the line accurately, and was as much surprised as the defendant was to learn that the point 940 feet north from the north line of Clinton street, which, according to the description in both deeds, was the plaintiff’s southeast and the defendant’s northeast corner, fell 9¿ feet south of the fence between their lots; but he proceeded thereupon tofo ring his action for damages for breaking and entering his close and taking and carrying away the soil of his lot. That action, we suppose, could not be maintained on the facts stated, for want of possession in the plaintiff; and the objection was taken by the-defendant in his motion for a nonsuit on that ground.

The action of trespass quare clausum fregit has always been regarded as a possessory action, and one which could be maintained only by the party in possession. 4 Kent, Comm. 120, note d; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Stuyvesant v. Tompkins, 9 Johns. 61; Frost v. Duncan, 19 Barb. 560. It is true that the possession necessary to the maintenance of the-action need not in all cases be an actual possession. As was said by Chief Justice Nelson in Holmes v. Seely, 19 Wend. 507:

“The plaintiff must have the actual possession at the time, or, what is-deemed equivalent, a possession which the legal title draws after it.”

But the legal title does not draw after it the possession of land which is at the same time in the actual, exclusive, and adverse possession of another. In Van Rensselaer v. Radcliff, 10 Wend. 639, it was held that a party having title to lands, though not in the actual possession thereof, may maintain trespass against another, who i» not himself in the actual possession of the premises. The language-of Judge Savage at pages 652, 653 was:

“The possession of the plaintiff was sufficient against a stranger. He-showed title to lands which were not in the possession of any other. He was therefore in possession, as, in such cases, the possession follows the title.”

See, also, Wickham v. Freeman, 12 Johns. 183, 184. The case» cited by counsel for the plaintiff, to the effect that title to the whole and possession of a part give constructive possession of the whole, do not apply to cases where the possession of the .locus in quo is actually in the defendant. In Munro v. Merchant, 28 N. Y. 9, the-question was what form of holding was sufficient to constitute an adverse possession in the plaintiff; but here was adverse possession in the defendant. It is impossible that two persons should be in possession of the same piece of land at the same time, unless they are joint tenants or tenants in common. In the case of Society v. Baker, 15 Vt. 119, it was held that “to maintain trespass quare clausum fregit, the plaintiff must have either title or exclusive possession, and there must be no adverse possession in any other person.” Here the actual, exclusive, and adverse possession of the defendant was unquestioned. The principles involved in this discussion were well stated by the supreme court of North Carolina in Dobbs v. Gullidge, 4 Dev. & B. 68, as follows:

“The action of trespass guare clausum fregit, being a remedy for injury to the possession, cannot be maintained by him who had not possession when the wrong was done. But when there is no actual possession in another the law adjudges him in possession who has the property,, and this constructive possession is fully sufficient to maintain the action.”

The answer here given to the plaintiff’s present action renders it unnecessary to consider the questions which might have properly arisen in the case had the action been one asserting title in the plaintiff, and claiming to recover possession of the defendant. The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event. So ordered. All concur.  