
    The Atlantic and Gulf Railroad Company, plaintiff in error, vs. Thomas J. Fuller, trustee, defendant in error.
    (Atlanta,
    January Term, 1873.)
    _ 1. Trespass — Possession.—Since 1st of January, 1863, under section 2960 of our Revised Code, the owner of land may maintain an action for a trespass thereupon, even though he have not actual possession of the same.
    
      2. Same — Railroads—Statute of • Limitations. — An action of trespass quare clausum fregit, which sets forth that the defendant had, without authority of law and without consent of the plaintiff, built a railroad upon the plaintiff’s land and had used and occupied it for a right of way since 1858 (more than seven years) is not demurrable, on the ground that on its face it shows the plaintiff’s right to be barred by the statute of limitations.
    3. Same — Same—Charter.—The owner of land taken by a railroad company for right of way is not debarred of his action for trespass, because the charter authorizes the company, in a particular way, to so appropriate the land, unless the company have pursued the mode pointed out, and thus acquired the legal right.
    Trespass. Railroads. Statute of limitations. Charter. Before Judge Sessions. Pierce Superior Court. September Term, 1872.
    On August 26th, 1871, Fuller, as trustee, commenced suit against the Atlantic and Gulf Railroad Company, upon the following declaration: “The petition of T. J. Fuller, as trustee, showeth, that he has sustained great injury and damage from the Atlantic and Gulf Railroad Company, for that the said *defendant in the year 1858, without the consent of petitioner or authority of law, entered upon, built their road and ran their engines and cars through and across lot of land number two hundred and eighty-five, in the fourth district of said county, the property of petitioner, and has continued to appropriate and use said lot of land for the purposes aforesaid, from the aforesaid year to the present time, to the damage of your petitioner $1,000 00. Wherefore,” etc.
    Counsel for the defendant moved to dismiss the action upon the following grounds:
    1st. Because the declaration showed upon its face that plaintiff’s claim was barred by the statute of limitations.
    2d. Because the charter provides the mode of suit in cases arising from the location of the right of way by the defendant, and, therefore, trespass was not the proper remedy.
    The motion was overruled and 'the defendant excepted.
    The case was submitted to a jury, who returned a verdict in favor of the plaintiff.
    The defendant assigns error upon the above ground of exception.
    J. C. Nichols, by Z. D. Harrison, for plaintiff in error.
    No appearance for defendant.
    
      
      Railroad — Trespasser.—To the holding that “as a matter of course,, if the original entry of the railroad company was wrongfully and not under color of right, it cannot better its situation by maintaining its roadbed upon and operating its trains over the right of way so appropriated, but continues to occupy the attitude of a mere trespasser,” the principal case is cited in Allen v. Macon, etc., R. Co., 107 Ga. 843, 33 S. E. Rep. 696.
    
   McCay, Judge.

Under our Code, section 2965, an owner of land may sue a ■trespasser, even if the owner has never had possession. This is a change of the common law, but it is a positive legislative provision, and is required by the circumstances of the country.

By the demurrer, the charges of the declaration are admitted. In this case, it admits that the defendant, without authority, and against plaintiff’s consent, took, etc. The seven years bar is based upon presumption of a grant; this, in terms, admits there was no right, or claim of- right. Title by prescription must be based on, at least, a claim of right. We *think, therefore, the plaintiffs declaration was not demurrable. The statute of limitations, as against a trespass, should have been pleaded. The recovery could go no further back than the time fixed by law for an action of trespass.

There is nothing in the charter denying to land-owners this right of action for trespass which he has at common law. If the railroad company desi-red to use its privileges under the charter, it was its right and duty to do so. But that mode of proceeding is not obligatory on the owner. The company may force him to that course by moving itself; but until that be done, the company is a trespasser, if the land owner so pleases to elect.

Judgment affirmed.  