
    Dawson v. Headen.
    A plaintiff in a possessory action, who floes not claim either as owner, or with the consent of the owner, must show that he was in actual possession of the land claimed when the eviction complained of occurred.
    
      from the District Court of Morehouse, Copely, J.
    
      Dubose, for the plaintiff.
    
      Robertson and Boatner, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is a possessory action, in which the plaintiff alleges that he has been evicted by force. He applied for, and obtained, an order of the district coui’t enjoining the defendant not to proceed any farther upon his property, by working or making any improvements thereon, till the further order of the court.

The answer of the defendant is a general denial, and an allegation that he has ¡never done any work, nor improved upon any land, except that of which he is the lawful possessor to the knowledge of the plaintiff. The case was tried before a jury, who returned a verdict in favor of the plaintiff; and the defendant has appealed from the judgment rendered thereon.

It is nof pretended that the plaintiff possesses under a title, either as owner, or with the consent of the owner; he must, therefore, show that, he was in aGtual possession pf the land he claims when the violence and eviction complained of are alleged to .have taken place.

The evidence shows that, in 1845, the plaintiff settled at the place where he nqw resides, built a cabin, apd enclosed a small held. This settlement was near a spring branch, on the other side of which the defendant then lived, and had also enclosed a few acres of land. The land in controversy is that through which the branch runs, and is situated between the two enclosures. It appears that, the defendant commenced making a fence, for the purpose of enclosing a portion Qf this land. The plaintiff having discovered this on a Sunday morning, took a portion of the rails off the fence around this lot, and laid the worm of a fence crossing the branch and passing over part of the land which the defendant intended fo occupy. On the same day, the defendant continued to lay down his fence, crossing the worm of the plaintiff at the gaps which had been left where it crossed the branch. On monday following, the sheriff served the process in tjiis spit. Tbs line of fence laid by the plaintiff had then large gaps, and went over logs and brush; and, in order to malte a fence, it would have been necessary to fake up the rails and Jay them down again. This line of fence, besides, stopped, and did not enclose any thing.

The plaiqtiff has totally failed to prove the fact of posseseion, and the disturbance of which he complains. Neither he, nor the defendant, had then acquired to the land ip controversy any right upon which the judgment of the court can be based.

If is, therefore, ordered that, the judgment in this case be reversed; it is further ordered that, the injunction sued out by the plaintiff be dissolved, and that the plaintiff's option be dismissed, with costs in both courts.  