
    Supreme Court of Errors and Appeals. Clarksville.
    1812.
    WAGGONER AND OTHERS v. CORLEW.
    Writ of Error.
    Trespass quare clausum fregit cannot be maintained against a person in actual adverse possession of the land. [Acc. Polk v. Henderson, 9 Y. 810; West v. Lanier, 9 Hum. 762.]
    A legal or constructive possession of land cannot exist where there is an actual adverse possession. #
    Possession of part is possession of all the land covered by the grant or deed. [Acc. Creel v. Jones, 6 Sn. 631; Waddle v. Stuart, 4 Sn. 534.]
    This was an action of trespass quare clausum fregit. The plaintiffs claimed under a grant from the State of North Carolina to one Tate, to whom they are heirs; but they never were in actual possession of any part of the land covered by the grant to Tate.
    The defendant cleared and occupied ten acres of land within the bounds of this grant; but he did not reside thereon, nor had he any house there. He claimed under a grant to one Tyrol, which covered the ten acres as well as the plantation on which he lived, but the ten acre field and his plantation were not connected with each .other.
    The defendant had no notice of the plaintiffs’ claim when he cleared the ten acre field.
    Upon this evidence the judge of the Circuit Court instructed the jury that the plaintiffs could not recover, because they were dispossessed by the acts done by the defendant; and that they could not recover damages for the trespass by which they were dispossessed until they had regained possession. The plaintiffs filed a bill of exceptions, and brought the cause into this Court by a writ of error.
    The cause was argued in this Court by Hayes, for the plaintiffs ; and by Gooke, for the defendant.
   White, J.

delivered the following opinion of the Court: —

The plaintiffs allege by their assignment of error that the Circuit Court erred,

1. In instructing the jury that the plaintiffs were dispossessed by the acts of the defendants, and

2. By charging that the plaintiffs could not recover damages before a re-entry.

To enable the plaintiff in an action of trespass upon real property to recover, he ought to have a possession in fact. A legal or constructive possession is not sufficient, according to the principles of the common law. The common law is in force in this State where it is consistent with the nature of our government, and has not been changed by statute. In this case it is- stated that the plaintiffs never were in actual possession. The defendant cleared the ten acre field; he settled on another part of the same tract, and must be considered in the actual possession of all the land within the bounds of the grant and conveyance under which he claims. As there was no other person in actual possession of any part of it, of course he had the actual possession of the ten acre field.

Upon this principle, it is conceived, no error was committed by the Circuit Court. 1 Johns. 511; 3 Johns. 468.

But it has been insisted that a legal or constructive possession was in the plaintiff, who claims under the elder grant; and that such possession is sufficient, as decided in 2 Hay. Rep. 402. A legal or constructive possession cannot exist where there is an actual adverse possession. The moment the defendant took an actual possession under a title adverse to that of the plaintiffs’, their constructive possession ceased. Hence, it is conceived, this case is not like that-decided in North Carolina; but if it were, we are not prepared to say that the doctrine there laid down is correct.

In this case, the plaintiffs ought to have commenced their action of ejectment, and recovered the possession. Then' they could have maintained their action of trespass, for the mesne profits.

Note. — The dictum in this case, that a legal or constructive possession is not sufficient to sustain an action of trespass on real property, is overruled by Polk v. Henderson, 9 Y. 310, and West v. Lanier, 9 Hum. 762. —Ed.

The judgment of the Circuit Court ought, therefore, to be affirmed.'  