
    Pacific Ry. Co. v. Justin Walker.
    January Term, 1874.
    Trespass: Proof of Title: Possession by Tenant. Where a person claims to be the owner of a certain piece of land as against all the world, and is in possession thereof by a tenant to whom he Inis leased the same, such person may maintain an action against a mere wrong-doer for injuries done to the land, although such person has never had actual and personal possession of the land, and although his title to the land may be ever so defective. Such possession and such claim of ownership is prima facie evidence of ownership as against any person, and is conclusive evidence of ownership as against a mere wrong-doer. A mere wrong-doer cannot dispute the title of the person so in possession, and so claiming ownership. [Rosa v. Missouri, K. & T. Ry. Co., 18 Kan. 128.J
    *Error from Wyandotte district court.
    Action by Walker to recover damages from the railway company for digging ditches on plaintiff’s lands, by means of which said lands were overflowed and otherwise injured. The answer contained, first, a general denial, then averred that Walker was not the owner of said lands, and -was not in possession thereof at the time of the committing of the supposed trespasses. The case was tried at the June term, 1872, of the district court. Verdict and judgment for plaintiff for $225 damages.
    
      Bartlett & Hale, for plaintiff in error.
    The evidence shows clearly that the plaintiff was not in possession 'of the premises claimed by him in his petition. On the contrary, others, to whom he had leased them, were in possession. This being •the case, plaintiff was bound to show his title in fee. Wickham v. Freeman, 12 Johns. 184; Holmes v. Seely, 19 Wend. 507; Kellogg v. Vollentine, 21 How. Pr. 226. This he did not do. He was bound ■to show in himself more than the equitable title. The court erred in admitting copies of the manuscript book purporting to contain the-allotments to the Wyandotte tribe of Indians. There was an original ■somewhere, and which should have been produced, or a properly certified copy thereof, according to the provisions of the statute. Civil 'Code, §§ 372, 385. The various documents annexed to the book of ■allotment were not the original certificates of the officers purporting to -have made them, but copies of such originals, and hence not evidence.
    The plaintiff in his petition counts upon his title in fee; and, being out of possession, this allegation he was bound to prove as affirmatively as in an action of ejectment.
    
      Cobb & Alden, for defendant in error.
    The plaintiff in error makes only one point for the reversal of the judgment, viz., insufficiency of proof of Walker’s title to the land alleged to have been damaged by the wrongful acts of plaintiff in error. The plaintiff in error asserts *no claim to the land; and if injury resulted from its acts, as the jury found, then the plaintiff in error was a naked wrong-doer, in the nature of a trespasser without color of right. The allotment book, or a copy thereof, duly authenticated by the secretary of the interior, of the allotment under the Wyandotte treaty of January 31,1855, was sufficient, to establish presumptively the title of the land in Joel Walker, as shown by that book, and was good evidence of the title. Civil Code, § 385; Harris v. Doe, 4 Blaekf. 369; Evans v. Trustees of Wabash & Erie Canal, 15 Ind. 319; Patterson v. Winn, 5 Pet. 233.
    Former possession of land is sufficient, under some circumstances, to establish a presumptive right to recover in ejectment, Morss v. Doe, 2 Ind. 65; and-so is possession by a tenant.
   Valentine, J.

The only rulings of the district court of which the plaintiff in error (defendant below) now complains are the admission of certain evidence at the trial, and the overruling of its motion for a new trial. We think, however, that no substantial right of the plaintiff in error was prejudicially affected by these rulings. The action was for injuries done to real estate by overflowing the same. Walker, defendant in error, was never in actual and personal possession of the property. But he was in possession of the same by his tenants, to whom he had leased the same. He had rented the property to, these tenants, and they were in the actual possession thereof; and he claimed ownership to the property as against all the world.

On the other hand, the plaintiff in error claimed no interest in the property whatever. Now, admitting, for the sake of the argument, that the documentary evidence of Walker introduced for the purpose of showing title in himself was not sufficient for that purpose, still, upon the foregoing facts, Walker should have recovered for the injuries actually done to his land. Admitting, for the sake of the argument, that the court below erred in admitting said evidence, and still no substantial right of the plaintiff in error was prejudiced thereby. Possession by a tenant was probably never sufficient to enable *the landlord to maintain the old action of trespass guare clausum fr'egit, for such action was purely a possessory action; but such a possession is unquestionably sufficient to prove presumptively that the landlord is the owner of the property. Or, rather, such a possession, with a claim of ownership as against all the world, is prima facie and presumptively evidence of ownership. Such possession and such claim of ownership is prima facie evidence of ownership as against any person setting up an adverse claim, and is conclusive evidence of ownership as against a mere wrong-doer. A mere wrong-doer has no right to dispute the title of a person so in possession, and so claiming ownership. The possession of the tenant in such a ease is the possession of the landlord; and the possession of the landlord, with the claim of ownership, is prima facie evidence that the landlord is the owner; and no mere wrong-doer has any right to set up a title of some third person for the purpose of defeating an action brought by the landlord against tile wrong-doer for injuries, done to the land by such wrong-doer. Under our system of practice there is no real action that requires that the plaintiff should have an absolute and unimpeachable title in fee-simple in order that he may recover. Even in the action we call ejectment, the person holding the paramount title may recover, and for the purposes of the action such person is deemed to be the owner of the land in controversy, however defective his title to the same maybe. As to what is prima facie proof of ownership, see Gilmore v. Norton, 10 Kan. *491, *505-*507, and cases there cited. As to a wrong-doer disputing the title of a person who is prima facie the owner, see Nelson v. Mather, 5 Kan. *151, *153, *154. As to who may recover in an action of ejectment, see Benz v. Hines, 3 Kan. *390.

The present action is not in its nature an action of trespass quare clausum fregit. Probably the injuries were not inflicted in such a way as to authorize an action of that kind to be maintained in favor of either the plaintiff or his tenant; but probably each had his action in the nature of an action on the case for the particular injury suffered by himself. The *present action is in the nature of an action on the case for the injury done to the land itself. It is not for any injury to any person’s possession. That an action of this kind may be maintained by a person owning the land, but not in the actual possession thereof, — a reversioner, for instance, —we would refer to the- following text-books, and to the authorities therein cited, to-wit: 1 Hil. Real Prop. 564, 565; 2 Washb. Real Prop. (3d Ed.) 392, 393, note 10; 4 Kent, Comm. (9th Ed.) 355. See, also, Fitzpatrick v. Gebhart, 7 Kan. *35, *42, *43. The question is discussed at some length in this last-mentioned case. With these views we think it really made no difference whether said documentary evidence proved that the plaintiff had a good title to said land or not. Indeed, after the plaintiff showed that he was in possession of the land by his tenant, and claimed ownership thereto, we do not think that the defendant, a mere wrong-doer, had any right to dispute the plaintiff’s title .by showing a paramount title in some third person.

The judgment of the court below is affirmed.

(All the justices concurring.)  