
    D. C. McLEAN, et ux, et al, v. KENNETH MURCHISON, et al.
    
    In trespass, q. e. f., the principle that where neither party has possession of a lappage, the superior title draws to it the constructive possession and excludes the constructive possession of the inferior title, may be asserted by one who is a stranger to such superior title, against the suit of one claiming under the inferior title.
    This, was an action of trespass, q. c. f., tried beforeFbesgb> J., at the- last Pali Term of Harnett Superior Court..
    
      
    
    Tbe plaintiffs claimed title to the land in- dispute, under a grant to one Morrison, and by him conveyed to their ancestor, so much of their claim as is necessary to the understanding of this case is represented by tbe lines A, B, C, D, E, FV X, Y,, Z, 1, 2. They occupied, that portion of this area,, which was south-west of the line, D 2; (see diagram,)' but whether their occupation embraced the Zorns in quo was a question.
    The defendants, for the purpose of showing-title out of the plaintiff, offered in evidence a grant to John Gray Blount, of older date than that under which the plaintiffs claimed; which covered a large space of country including, as they insisted, that portion of plaintiffs’ claim lying north east of the line, D 2, including the locus vn quo.
    
    The court charged the- jury if the plaintiffs were not in possession at the time of the alleged trespass, they must rely upon the constructive possession which arises from the title, and they had shown title ; and if they had also satisfied them of the trespass being committed on the Morrison grant, by the defendants, or any of them, within three years before the commencement of the suit, the plaintiffs were entitled to recover, unless the defendants had so-located the Blount grant as to cover the land on which the trespass had been committed, and that in this eventit was not necessary that the defendants should connect themselves with the Blount grant; thatit was sufficient to show title out of the State, older than the grant to the plaintiffs, for this takes away their constructive possession. The Court further instructed the jury, that if the plaintiffs were in actual possession, at the time of the alleged trespass, above the line D, 2, and they were satisfied from the evidence that the trespass was committed by the defendants, or any one of them, on any portion of the tract within three years — it made no difference whether the Blount grant is so located as to cover the Morrison tract or not; for the reason that the defendants have not connected themselves with the Blount grant. The defendants counsel excepted.
    The defendants counsel, asked the Court, to instruct the jury that if they should be satisfied that the Blount grant was located as contended by the defendants, and the plaintiffs had no possession of the lappage, but that their only possession was below the line D, 2, and that the trespass, if any, was upon the land covered by the Blount grant, above the line D, 2, that the plaintiff could not recover. The Court declined giving the instruction; but told the jury that If the Blount grant was located as contended by the defendants, and the trespass, if any, was committed upon the land covered by the Blount grant, above the line D, 2; then, if at the time of said trespass, the plaintiffs had no possession above the line D, 2, upon the lappage, but that their only possession was upon that part of the grant below the line D, 2, which would not be -upon the lappage, the -plaintiffs would be entitled to their verdict, as the defendants had not connected themselves with the Blount grant. Defendantexcepted. Verdict for'the plaintiff. Judgement and appeal *"by the defendant.
    No counsel appeared for the ¡plaintiffs'in this Court.
    
      ■Strange and KeiXl McKay, for the defendants.
   Manly, J.

We tlim-k there was error on the part of the court below in refusing the instructions asked for. The action •of trespass, guare clausum fregit, is a possessory action, and can only be maintained by 'one who has a possession, either actual or'constructive; and the enquiry therefore, as to who. had the possession of the locus in guo is material, and happens in this case to be the turning point. In the case of lapping grants, when neither proprietor is in actual possession of the part common to both, the constructive possession of that part is with the superior title. Actual possession fh.e pedis positio of the law) by one who has the inferior title outside of the part that is common, however extended his claim, or long continued as to time, will not diminish the strength of the superior title. The reason is: such a possession does not expose the party to the others action, or afford him an opportunity of asserting at law the superiority of his title. The parties consequently remain unaffected as to their respective rights in the part common to both the grants as long as the}1- remain in this condition ; and as to possession, he has it by construction, who has the superior title. But if the party with the inferior title, take possession any where in the part that is common, such possession is held co-extensive with the entire part, and in such case the constructive possession which follows the better title is repelled, ¡and the law adjudges him who has the pedis jposi4io, to be in exclusive possession ^ for the reason, that where-ever he may have planted himself in the disputed part^ he is alike exposed to the-action of the adverse claimant; and therefore his possession should be held, in accordance with the general principle, commensurate with his claim. Williams v. Buchanan, 1 Ired., 535; Baker v. McDonald, 2 Jones, 244; McMillan v. Turner, 7 Jones, 435. These rules of law present and explain the apparent inconsistency-, that while in the present condition of the respective claimants to these grants, the possession is construed to be in the heirs *of Blount, yeft if their grant had covered more of the plaintiff’s land, i. e., had ■extended south of the line D, 2, so as to embrace the actual possession of the plaintiff, the possession of the whole la.p would have been in the plaintiffs. In the former case the plaintiffs could not maintain this action, ha the latter they ■could.

The principles here laid down were fully recognized by his Honor below'-in the first part of his instructions to the jury, but in the latter part, he seems to hold them inapplicable to the trespass of a stranger or mere wrong-doer. We are mot aware of _such an exception. This action cannot be maintained by one who has neither the actual nor constructive possession -of the locus in quo, -against .an intermeddler. There-must .be a mnvre de novo.

Per Curiam,

-Judgment reversed.  