
    West vs. Lanier.
    The defendant entered upon a tract of land, under a claim of title, and removed iron ore therefrom, from lime to time, to supply an adjoining factory, but without any actual enclosure or residence thereupon. Onthis state of facts it is ruled, first, that such entry and removal of ore constituted an actual possession, and defeated the constructive possession of the true owner. Second, That the owner was entitled to damages in trespass for the disseisin; but not for subsequent injuries to the freehold, till he had recovered possession.
    West obtained a grant from the State for twenty-five acres of land, lying in Perry county. Subsequently, Dixon obtained a grant for fifty-two acres in the same county, which covered the land granted to West. Dixon sold the tract, granted to him, to Yanlier, and executed a title bond to him. Vanlier cut timber on the land, and dug and removed iron ore therefrom.. He died. The title bond was returned to Dixon, and he sold the land to Lanier and executed a deed of conveyance to'him. Lanier placed slaves on the land granted to West, and they cut timber, and dug and removed iron ore therefrom, from time to time, to supply a factory which he owned some miles from the land. He did not, however, reside on the land, nor did he build any house for the slaves thereupon, or make any enclosure. The land was only valuable for the timber and ore. The timber and ore were removed under a claim of ownership by the title deed from Dixon.
    West instituted this action of trespass against Lanier in the Circuit Court of Perry county, and claimed damages for timber cut and iron ore dug and removed.
    It was submitted to a jury, and Hardin, special judge, charged them as follows:
    “ That though the right of property may come into controversy in the action of trespass upon property, yet the gist of the action is the injury done to the plaintiif’s possession. The plaintiff must prove first,' that the property was in his possession at the time of the injury, and this rightfully, as against the defendant.; and second, that the injury was committed by the defendant with force. The possession of the plaintiff may be actual or constructive; and it is constructive, when the property is either in the actual custody and occupation of no, one, but rightfully belongs to the plaintiff, or where it is in the care and custody of his servant, agent, or overseer. A disseisee, though he may maintain trespass for the original act of disseisin, cannot have this action for any subsequent injury, until he has acquired the possession by re-entry, which will relate back to the original disseisin, and entitle him to sue in trespass for any intermediate wrong to the freehold. The defendant may prove that plaintiff- had no property in the goods, or title to the land. So the defendant may show that the freehold and immediate right of possession are in himself, or in one under whom he claims title.
    
      There are two grants produced on this trial. The party producing the grant, founded upon the oldest entry, has the best title. For the plaintiff, in this cause, to make out his case, if the proof shows that he was not in actual possession of the land in controversy, he must show a good legal title to the land in himself; which, if the land was unoccupied, would give him a constructive possession. If the defendant, under these circumstances, entered upon the land in controversy, and took actual possession of it, claiming the same by virtue of a deed, grant, or other assurance, purporting to convey an estate in fee simple, and in thus obtaining possession, he committed the alleged trespasses, he would not be guilty; for the moment he thus took possession, the statute of limitations commenced running in his favor, and the only way prescribed by the act of 1819, to stop the running of the statute of limitations, after it has commenced running, is by the person having the better title, to commence a suit in law or equity, and prosecute it effectually. So if the proof in this case shows that the defendant did thus enter upon the land in controversy, and after thus.having it in his possession, he committed the alleged trespasses this form of action cannot be maintained against him, until, the plaintiff commences and effectually prosecutes a suit in law or equity, and recovers possession of the land in controversy. The court further charged the jury, that if the plaintiff was only in constructive possession, and the defendant took actual possession, claiming under a deed, grant, or other assurance purporting to convey a fee simple estate, he would not be guilty of such a trespass, as can be remedied by this ación. If the proof satisfies you that the defendant constantly occupied, or used the land in controversy, in such a way as the land would alone admit of claiming it by virtue of a deed, grant, or other assurance in fee simple, and continued thus to use and occupy it, such use and occupation would be an actual possession. Ordinarily, the law requires the constant occupation of improvements, such as houses, fields, or enclosures, to constitute an actual possession, but if the proof satisfies you in the present case, that defendant, claiming as aforesaid such pits, dug ore, and cut timber, and removed them, and that the land was fit only for these purposes, and not suitable to be used in any other way, the occupation and use of it in this manner, would constitute an actual possession; and if the defendant, after having thus used the land in controversy, by himself or servants, temporarily suspended operations, for a week, or even a month, or any short period of time, with the intention of again, in a short time returning, and resuming business upon the land, and he accordingly did so return and resume business, and use and occupy the same, as he had done before, such would be considered a continued, actual possession of the same,”. Verdict and judgment for defendant. Plaintiff appealed.
    
      Scurloch, for the plaintiff.
    The court charged the jury, among other things, in substance, that if the defendant entered oh the land, claiming it as his own, under a deed, grant, or other assurance of title, purporting to convey a fee simple estate, that the plaintiff could not maintain this action for the trespass thus committed, &c. It is contended that this portion of the charge is erroneous as applied to the facts in this case. The defendant never did actually occupy the twenty-five acres of plaintiff, except from time to time to dig and use the ore thereon; and on that portion of the fifty-five acre tract, where his cabin was, it was only an occupation for the purpose of conveniently getting the ore, and not such an actual adverse holding of the fifty-five acre tract to the extent of its boundaries as would oust the plaintiff of his constructive possession of the twenty-five acre tract, so as to deprive him of the right to this action, whenever the defendant commenced digging on the twenty-five acres. The constructive possession of land in this country entitles the owner to this action against a wrong-doer. 4 Dev. and Bat., 68; 3 Hum., 267.
    An actual adverse holding of the locus in quo must exist before the plaintiff is ousted of his constructive possession, which must be by a residence upon the land itself or the enclosure of a portion thereof or an enclosure without residence, would oust the plaintiff to the extent of the enclosure. Dobbs vs. Gullidge, 4 Dev. and Battle Rep., 68. And the temporary use of the land by working on it in the day, and leaving it at night, &c., would not be such an oustér as would bar the plaintiff after seven years from his action of ejectment under an act of 1819, as charged by the court in the present case. Graham vs. Houston, 4 Dev., 239; Green vs. Harman, lb., 161-2.
    If there be two patentees, the entry of the younger on his own land, does not oust the other unless it be on that part of the land covered by both titles; and if it be on that part, the possession is confined to the actual occupation if the elder be also in possession of any portion of the same land included in both patents. 4 Dev., 164.
    
      B. 8. Allen and Jones, for the defendant.
    The counsel for the defendant insist that there is no error in the verdict and judgment below, and that the same ought to be affirmed.
    
      1. We tbink tbe use and occupation of the land in question, by the defendant, amounts to an actual possession, and is not merely a number of separate and distinct trespasses. The proof shows that the land was in the actual possession of no person- previous to the entry of the defendant, or those under whom he claims, and the most that could be said for plaintiff is, that he held the legal or constructive possession, such only as follows the legal title to unoccupied land. The proof further shows that the land was only valuable for the timber and iron ore found upon it, and that the defendant had been in the constant habit, both before and at the commencement of this suit, of raising the ore and hauling it off to his furnace some two and a half miles distant; that during all that time his furnace was entirely supplied from the ore banks on the lands contained in plaintiff’s grant. This we contend is an actual possession, and such an one as will oust the constructive possession of plaintiff. See Eiowg vs. Burnett, 11 Peters’ Rep., 41; 1 Ire. Law Rep., 56 ; Simpson vs.- Blount, 3 Dev. Law Rep., 36; 1 Dev. and Bat. Law Rep., 2; 4 Ire. Law Rep., 310; 6 Peters Rep., 513; Peters Rep., 442.
    2. But plaintiff’s counsel insist that, although the defendant’s possession is actual and ousts the constructive possession of plaintiff, yet the plaintiff ought to recover nominal damages for the first entry. To sustain this position we think would be .in direct conflict with the law as it has been adjudged from the earliest period of English jurisprudence down to the present time. What is the gist of this action ? The answer is, an injury to the possession. Then how is a person, who has no possession, to maintain an action for an injury to that which he has not? The courts have always driven them to their action for possession first, when, if they recover and show themselves thereby legally entitled to the possession, they will hea their complaint for the injuries done thereto. 1 Chitty PI., 161; Whea. Sel., 2 vol„ 483; (title Trespass) 17 Mass. Rep., 299; Cook’s Rep., 246, and a host of other authorities to the same point. And surely the fact of plaintiff’s possession, being a mere constructive one, would give him no superior rights over persons %ho were ousted from an actual possession.
    3. This court will not reverse a cause for an abstract error in the charge of a Circuit Judge, where it is manifest the jury were not misled by it. Porter vs. Woods & Stacker, 3 Hum., 56; 2 Hum., 518; 1 Hum., 473. It is essential that the misdirection should materially affect the verdict, or a new trial will not be granted. Grah. on New Trials, 263; 10 Johns. Rep., 447; 5 Mass. Rep., 487. If the court can see that substantial justice has been done, a new trial will not be granted. Grah. on New Trials, 301; 2 Salk., 644-46. We, therefore, think this cause, in any aspect, ought to be affirmed.
    
      Pavatt, for defendant.
    
      Bullock, for plaintiff.
   GREEN, J.

delivered the opinion of the court.

This is an action of trespass quare clausum fregit, brought by West, against Lanier, for digging ore, from an iron ore bank. The plaintiff claims title by virtue (if an older entry and grant. The defendant claims title to the same land, by virtue of a deed of conveyance from a younger grantee.

It appears, from the bill of exceptions, that Samuel Yanlier built the Brownsport furnace in 1839, and in 1840 his hands were employed in digging ore at the bank on the twenty-five acre tract in dispute, and that he continued so to work the same until his death, about the "last of November, 1844. After Yanlier’s death the furnace was run, and ore was dug until about the 1st of January, 1845, when all the hands and mules were removed from the ore bank in question. About the 1st of February, 1845, the defendant’s hands commenced cleaning out the pits and digging ore at the aforesaid bank, and defendant has continued to raise and carry off the ore ever since that time. Yanlier claimed the land as his own, under a title bond from Wallace Dixon, the grantee, and after his death the title bond was destroyed by the consent of all parties, and Dixon then sold the land to the defendant, who entered upon the same, claiming it as his own. This record does not show whether the possession of the defendant has any connection with Yanlier’s previous possession, and claim under the said title bond. The land is of no value except for the ore and timber.

The court charged the jury in substance, that if the plaintiff showed that the legal title to the land was in him, he would be in the constructive possession thereof, when it was actually occupied by no one else; that a disseisee may maintain trespass for the original act of disseisin, but that he cannot have this action for any subsequent injury, until he has acquired the possession by re-entry, which will relate back to the original disseisin and entitle him to sue in trespass, for any intermediate wrong to the freehold. But the court further charged the jury, that if the plaintiff was only in the constructive possession, and the defendant took actual possession claiming under a deed, grant or other assurance purporting to convey a fee simple estate, he would not be guilty of such a trespass as will entitle the plaintiff to his action. If the defendant constantly occupied and used the land in such way as it would alone admit, claiming by virtue of a deed, grant or other assurance in fee simple and continued thus to occupy it, such use and occupation would be an actual possession.

The jury found a verdict for the defendant, and the plaintiff appeals to this court.

1. The plaintiff in error insists, that the court erred in charging the jury that the use and occupation of the land in question, for digging ore would be an actual possession. We do not think his Honor erred, in this instruction. In the language of the court in Ewing vs. Burnett, (11 Peters Rep. 52,) “an entry by one man upon the land of another is an ouster of the legal possession, arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise, it is a mere trespass ; in legal language, the intention guides the entry and fixes its character.” In the same case the court says, “ neither actual cultivation or residence is necessary to constitute actual possession, (8 Peters 515,) when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property he claimed in his own right, and would not exercise over, property he did not claim.” In this case, the possession of the party consisted of digging and carrying off sand from a lot in Cincinnati, under a claim of title. The possession, the court decided, was sufficient to vest in him the better title, by the statute of limitations.

Judge Gaston, says, in Williams vs. Buchanan, 1 Ire. L. Rep. 540, “possession of land is denoted by the exercis'e of acts of dominion over it, in making the ordinary use and taking the ordinary profits, of which it is susceptible in its present state, such acts to be so repeated, as to show that they are done in the character of owner, and not of an occasional trespasser.” See, also, same book, 58; 2 Ir. L. R. 564; Ir. L. R. 310; 3 Dev. 36; 4 Hump. 59; 9 Yerg. 93; Mart, and Yerg. 58. From these cases it will be seen, that an enclosure or residence on land, is not necessary, in order to constitute possession; but that such use and occupation of it, as from its nature and character it is susceptible, under a claim of ownership, will be an actual possession.

2. But we think the court erred, in telling the jury, that if the plaintiff was only in the constructive possession, and the defendant took actual possession, claiming under a deed, grant, or other assurance purporting to convey an estate in fee simple, he would not be guilty of such a trespass, as will entitle the plaintiff to this action. It is true that in England, this action cannot be supported, unless the plaintiff was in actual possession when the trespass was committed. Chit. Pl. 175, 177; 5 East. R. 485-7. But in this country a different rule has prevailed; and now it is well settled, that the party who has the legal title to land which is adversely occupied by no one, has a constructive possession thereof, that will enable him to maintain trespass for an injury to the freehold. 11 John. 385 ; 9 Yer. R. 311. The reason of this diversity is, that in this country a large portion of the lands are in the actual occupation of no one, and unless the owner were allowed to maintain trespass upon his constructive possession, those lands would be exposed to the ravages of every lawless wrongdoer. 9 Yerg. R. 312. Although, therefore, the plaintiff may be only in the constructive possession of land, and the defendant may have taken possession thereof, claiming it as owner, and thereby may have ousted the party having the better title, so that the statute of limitations may commence running in his favor, yet the first entry was a trespass for which he may maintain this action. Chitty says (1 Chit, on PL 177,) “a disseisee may have it (trespass) against a disseisor, for the disseisin itself, because he was then in possession; but not for an injury after the disseisin, until he hath gained possession by re-entry, and then he may support his action for the intermediate damage.” This doctrine applies in this country to a disseisin where there was a constructive possession only, and entitles the true owner, who is thus ousted, to maintain trespass for the first entry, but not for any subsequent acts. This court is not to be understood as holding a different doctrine, from that here stated, in the case of Polk vs. Henderson. 9 Yerg. R. 312. All that the court decided in that case, is, that for acts done by a party in possession, under a claim of title, trespass will not lie. And so we now hold. If, therefore, the defendant’s possession has no connection with the previous possession of Vanlior, he is liable to this action for his first entry; but not for any subsequent acts. Reverse the judgment, and remand the cause.  