
    January Term, 1829.
    
      Guy Catlin vs.Lemuel Hayden, and Guy Catlin vs. Oliver Bliss.
    
    That the landlord of a tenaut at will, which has ron into a tenancy from yeni to year, cannot maintain trespass for an injury to the freehold.
    Each of those was an action of Trespass iyuare'clausum fregit, for cutting timber on lot No. 167, in Essex. The first case was defective in not fully showing the nature of the contract under which one Wiggins, named in the case, took andheld possession. This was supplied in the second, and the parties agreed that both should be [considered together, and alike, as to the important facts in the exceptions allowed in both cases.
    By the exceptions, it appears that -the lot in question was set to the right of Jacobus Bogart, an original grantee, in the division of lands in Essex: and die plaintiff showed his title to said lot, by a deed from Abraham, Ives, sheriff, and collector of a land tax, to Ira Allen, a deed from said Allen to Silas Hathaway, a deed from said Hathaway to Jonathan and Elijah Ferris, and a deed from said Jonathan Ferris to the plaintiff.
    The plaintiff, also, to show himself in possession of the said lot, introduced a decree of the court of chancery, in which it was decreed that the plaintiff and one Thaddcus Tuttle were tenants in common of this and other lands in Essex; and also decreed how they should quit to each other, so as to perfect a division between-them. This, however, was not completedhill after the commencement pf these suits. The plaintiff then adduced testimony tending to show that, in 1814, the said Tuttle agreed with one Benjae-mm Wiggins, that he should go on to said lot and make improve-. ments ow the same, and endeavor to prevent other people from-committing trespasses on the same, and continue in possession till t-he disputes about said lands between the plaintiff and said' Tuttle should be settled: and if, on that settlement, said lot should fall to-said Tuttle, said Wiggins should have the privilege of purchasing, said lot — That said Wiggins took possession, under said contract,, and continued making improvements thereon till after the- commencement of these suits.
    The council for the plaintiff requested the court to instruct the jury, that if they believed said Wiggins' took and held possession under said Tuttle, as above testified, and that tire plaintiff and said-Tuttle were tenants in common, as above mentioned, and if they found the defendant had committed tire trespass complained of,the plaintiffwas entitled to recover. The court refused so to instruct the jury; and did instruct them, that if they should find, as last above mentioned, that would not show a sufficient possession of the premises in the plaintiff to maintain tire action of trespass quare clausum fregit. The jury returned a verdict for the defendant in each case. Exceptions to the charge were taken by the plaintiff, and allowed by the court.
    
      The arguments before the Supreme Court .were intended for said first suit.
    
      Adams and Van JWéssffor the Plaintiff. It may, for the purposes of this trial, be taken for granted, that plaintiff and Tuttle were tenants in common, and that Wiggins was in the lot as tenant at will. The question then is, whether under such a state of tilings, Catlin can maintain this suit ? It is conceded that the right to recover in tresspass is founded on the possession of the plaintiff. But we contend that the possession of tenant at will enures for the benefit óf the landlord, and is, in law, the possession of the landlord. 6C'om.Dig.389. Soiftenantatwillcommitwaste,thelandlordmay have trespass. — lb. To the same point is Co. Lit. 57; Action of trespass may be maintained by landlord against tenant at Will. — 3 Johns. Rep. 468i Toly vs. W'ebsier. If the possession is in the landlord in this case} it must be in all, for the same possession, is necessary in this as in other cases. See also Cro. Ch. 187, West vs. Treude.
    
    Tenant at will cannot maintain trespass for any injury to the estate. It is undoubtedly true that he may sue for any injury to his possession — as loss of shade, &c. destroyingfois crops; buthe has no interest in the soil, trees, or the like. To allow him to sue and recover damages .for the landlord, would be productive of grea* mischief. He could not be compelled to sue, and it would bo hard to commit the interest of the landlord to the whim of his tenant. If he did sue, and recovered damages, there is no way in which the landlord could draw the money out of his hands.
    The landlord cannot have case against those who should commit trespass during the possession of the tenant at will.- Case lies where there is an injury to the reversion. Now, there cannot be any remainder after an estate at will. To make a remainder,there must be a particular estate precedent to the estate in remainder. — ■ 2 El. Com. 105. Lease at will is not such an estate as will support a remainder. — 3 Bl. Coin. 160. An estate at will is so precarious that it is not considered as a portion of tho inheritance. — 3 Bl. Com. 166. The interest of the tenant at will is swallowed up in that of the landlord, he is the agent or servant of tho landlord,and his possession is the possession of the landlord,
    
      Landlord can maintain trespass for any permanent injury to the estate, notwith- ' standing possession of tenant at will. This doctrine is maintained from the earliest times, for which we have the authority of Roll. —ft Rot. Jib. 551. — 1 Vin. Jib. 46, Trespass, n. 3. — 4 Com. Dig. 389. — Co. Lit. 57, a, and 1 Saund. 322, a, n. 5. For a full examination of these authorities,see the able argument of Ch. J. Parker, in the case of Star vs. Jackson, which was decided in 1814, (11 Mass. 521,) when this question was discussedand decided. The case of Biddéford vs. Onslow, 3 Lev. 209, has no bearing on this point. It was a proper action on the case. The two cases froto the state of New-York, Campbell vs. Arnold, 1 Johns. 511, and Tobyvs. Webster, 3 Johns. 468, seem not to have been much considered. The latter is founded on the first, while -the first rests, arno'ng other cases, on that in Levins,which clearly has no bearing. -The doctrine laid down in 1 Chit. PI. 175, is undoubtedly correctbut it is not a decision of the point in question. The plaintiff must,no doubt,have the possession, and the inquiry is, whether the possession of his tenant is not his possession ? ‘The subsisting lease, of which CTwiaty'speaks, cannot mean a léase ai will, but for years, or of some certain estate. It happens -in this case, as in a thousand others, that the authorities cited, and on which he relies, do not warrant his position^ and indeed most of them are entirely foreign to the subject.
    
      Mr. Bailey, for the defendant. The first point in this case is, can the lessor of a tenant at will maintain an action of trespass •guare clausum fregit for an injury done to the land by a stranger, during the continuance of the possession of the tenant ? It is proposed to consider this question, firstly, upon general principles; secondly, upon the ground of authorities.
    1. It is laid down by every elementary writer, who treats of the remedies for injuries'to real property, t¡¡iat trespass quare clausum fregit can be maintained only-by him who had the actual possession of the premises, at the time the act complained of was committed. In the case-of a tenancy at will, the inquiry is, who has the actual possession ? It is certain that the lessee has a possession sufficient to support trespass against a stranger, and even against the lessor himself. The tenant’s possession, then, mu^ be exclusive of that of the landlord,, for it would be absurd to say that where two have equal possession, one can have his action against the other for an injury to his possession. Originally, a lease at will was considered as a “ mere executory contract, not “ communicating any interest to the tenant in the thing demised;” But for a great length of time the tenant has had a “ vested “ interest in the tenement,” determinable at the will of himself, or of his landlord. While the estate continues, it possesses all the essential properties of an estate for years. The relation of landlord' and tenant subsists as completely in the one case as in the other. The lessor transfers to the lessee the whole possession of the premises, or right to use, occupy, and enjoy them, in as full and ample a manner as himself could do. The tenant is entitled to emblements, if the landlord determine the estate. Rent may be, and is, reserved on leases at, will. The difference between these two species of estate, consists principally in the nature of the tenure, or rather, in the method of determining them.— One expires by its own limitation, the other by the act of one of the parties. It has been repeatedly decided that tenant at will is entitled to notice to quit, before the landlord can recover the possession in ejectment. It cannot be said that lessor and lessee have a joint, or concurrent possession. Nor can the former maintain trespass against the latter, except for an act which determines the estate. From these premises, if correct, it necessarily follows,that the tenant has the actual and absolute possession. It is not pretended that the injury which the lessor sustains is a violation of his possession, which alone can support trespass quare clausum, fregit. It is an injury to his reversionary interest: it is consequential, and the remedy is case. From analogy, and from principles,which are admitted, it seems to be clear, that the tenant alone can maintain this action.
    
    2. As a question of authority,it is contended, that our proposition is supported by a great majority of the adjudged cases. It was formerly held that a bare possession was not sufficient to maintain trespass quare, &c. and as that was all the tenant'was supposed to have at that period, the action, of course,-.was brought in the name of the landlord. — Ham. Nisi Prius, 213. But after the tenant became clothed, in consideration of law, with a vested interest in the land, of which he was in possession, he was allowed to bring the action in his own name : and, says Mr. Hammond, at the present day, the tenant at will alone can maintain the action. — Id. 213-15-10. Whatever confusion or contrariety may be found in the decisions on this subject may, doubtless, be attributed to “inattention to the obsolete principle” upon which the landlord’s right to bring the action was founded. It has been said, and so probably is the law, that if a tenant at will cut down timber-trees, or pull down houses, the lessor may have tresspass m et armis.— Co Litt. 57, a. So he may have this action against the grantee of lessee wh'o enters. — lb. Trespass lies against the tenant at will for voluntry waste, as cutting timber, Sic. — 7 Johns. 1, Philips vs. Covert. — Cro. Eliz. 777, 784. — 5 Rep. 14. — Bui. JV. P. 84. But in all these cases, the landlord’s right to maintain trespass is placed wholly upon the ground, that the several acts of the tenant enumerated amount in law to a determination of the tenant's will, and, consequently, of'his estate. This shows plainly, that while the estate continues, this action cannot be supported.
    But who shall bring the action of trespass quare clausum fregit against a stranger who cuts down trees, or pulls down houses, while the tenant is in possession ? In Hargrave and Butler’s notes to Co.Lit. h1,a,n.c, 78,it is said,“if a stranger cuts trees,the “ tenant at will shall have action, as shall also the lessor, regard “being had to their several losses,” and 2 H. 4, 12, 19. II. 6, 45, and Hale’s manuscripts are cited. No mention, however, is' made of the form of the action by lessor ; but from the words “ re“gard being had to their several losses,” it is reasonable to sup-' pose that an action on the case is referred to. In Biddeford vs. Onslow, 3 Lev. 209, it was expressly decided, that lessee at will only can maintain an action of trespass against a stranger, for an injury done during the continuance of his possession ; and that, if the reversion was injured also, the lessor’s remedy is case. To the same effect are Sid. 347, dreary vs. Bearcroft, and 2 Rol. Jib, G5L If a man enter upon another’s ground or into his Louse without lawful authority, and do damage to bis real property, the tenant in possession may have an action of trespass quare clausum fregit, and the reversioner or remainder-man may have an action on the case, if the trespass be an injuryto his reversionary interest,as cutting down trees, &cl — Arch. PI. 15.• — In all cases of trespass, when the injury is not only to the tenant in possession, but also to the inheritance generally, the termor may have a remedy by action of trespass, and the reversioner, by action on the case.— And in all other cases of injury to land, not amounting to an ouster, the action must be brought, by the tenantin actual possession. ' — lb. 50. — Says Mr. Chiity, 1 vol. PI. 176, a landlord cannot, during a subsisting lease, support trespass, but the action must be in the’name of the tenant, or the landlord must proceed in case; and that a tenant for years, a lessee at will, and a tenant at sufferance, may support trespass against a stranger, or even against his landlord. As to a tenant at sufferance having trespass against his landlord, it is true that the contrary doctrine was held in Wilde vs. Cantillon, 1 Johns. Cas. 123. Lessor cannot maintain trespass quare, Sic. against a stranger for cutting down trees, while there is a tenant in possession; the action must be brought by him in actual possession. — Campbell vs. Arnold, 1 Johns. R. 511. — Nor against a subtenant at will of his lessee. — 3 Johns. R. 468, Toby vs. Webster. — To maintain this action there must be actual possession. A general property does not, in the case of real estate, carry with it a constructive possession. — 2 BAs. 268. — 1 Chit. Plead. 176-7. — 2 Phil. Ev. 132. — Ham.N. P. 163. — 9 Johns. R. 61. — 1 do. 511. — 12 do. 183. — 8 .Mass. R. 411, Taylor vs, Townsend. — Plaintiff must have an exclusive possession. — 1 T. R. 430. — Trespass by owner will not lie for entering a pew, the possession of the church being in the parson.
    There cannot be a constructive,in opposition to an actual,possession. Of course, the person having the actual possession (the tenant) must bring the action of trespass quare clausum fregit.
    
    The case of Star et cil vs. Jackson, 11 Mass. 519, in which it was held, that both the landlord and tenant might have trespass quare, 8ic. against a stranger, for cutting trees, subverting the soil, or demolishing houses, is not support* ed, it is believed, by principle or authority; It expressly says, that the lessor is entitled to his action, because these acts of trespass work a permanent injury to the freehold, not to' lessor's possession. Now he who hath the actual possession, as lessor must have to maintain trespass, cannot be, at the same time, said to have the reversion of the same land. It is quite clear that the court did not sufficiently distinguish between the respective, interests of the lessor and lessee, and the appropriate remedies for injuries to their different estates. The same court had decided, that no one could maintain this action, unless-he had, at the time of the act complained of, possession in fact of the land. — S Mass. Rep. 411, Taylor vs. Townsend.
    
    In this case, however, there was at least a general occupation, or holding by the tenant by permission, of Tuttle, which is now held to enure as a tenancy from year to year. — 8 East, 165, Doe ex dem. Warner vs. Brown. — Adam's Eject. 103; and in such case, it is well settled, that the landlord cannot maintain trespass against a stranger. And though the court below in their charge to the jury may have erred in their opinion upon an abstract or irrelevant point of law, this court will not grant a new trial, if from the case itself the party excepting is not entitled to it. — 1 Aik. li. 43, Ross vs. Bank of Burlington,.- — 1 Johns. C. 250, Goodrich vs. Walker. ' , — 3 Johns. R. 237, Uyat vs. Wood. — 5 Mass. 1, Brasier et al vs. Clap.-r~do. 101, Jones et al vs. Fales. — 6 do. 350, Newhall vs. - Hopkins.
    
   Hutchinson, J.

delivered the opinion of the Court. This being an action of trespass upon the freehold, it is a conceded point that the plaintiff must have had possession of the premises at the time the trespass was committed,or he cannot maintain the action. Whether the testimony shows that he had such possession, is the principal matter of dispute. The plaintiff’s counsel contend that Wiggins was merely a tenant at will to Tuttle, and, therefore, Tuttle, or his co-tenant, Catiin, can maintain this action — That, for this purpose, the possession of Wiggins must be considered' 'the possession of' Tuttle and Catiin.

The tenancy in common of Tuttle and Catiin is sufficiently shown to plhce them on equal footing in point ■of possession; at least, we so consider ■it nn our present decision. Had the plaintiff, then, or had Tuttle, such possession as will enable him to maintain this action of trespass ? The authorities have been presented on both sides with a plausible application. The case cited by the plaintiff’s council from the 11, Mass. R., exhibits a thorough investigation of authorities, and produces the result that the owner of the soil may maintain trespass qua- clau.fre. for an injury done while a tenant at will is in possession of the premises. The court, •in malting this decision suppose it directly opposed to the cases now cited by the defendant’s counsel from the first and third vol. ■of Johns. R. It is not easy to ascertain, from the reports of those cases,how far they should be governed by similar principles. The case in the 3 Johnson■ is clearly a lease for years: and the paintiff had not, in any sense, the possession or the right of possession, when the trespass was committed. In the case cjted from 1 Johnson, it is said “ that one A was in possession under the' plaintiff, to whose agent he paid rent.”Now, this might have been a direct lease for years; or might have beenrunniug with a punctual payment of the rent, till it had become a tenancy from year to year. In both these cases the court decide that trespass will not lie in favor of the landlord : but they say nothing about tire tenure, whether a tenancy at will or for years.

. In the case cited from the 11 Mass Rep. tire court treat the case as technically a tenancy at will. The report.states the case to be, that one A took possession under a parol lease in May, and continued to possess till November — That in May, while A was in possession, the trespass was committed, and a similar trespass the next season, without saying whether A was in possession the second season, or whether his parol lease was,by its terms, to continue till the first November mentioned. We must presume it indefinite in point of time at its creation ; for .in such case only, would its terms indicate a tenancy at will, as it is treated by the court. And the authorities upon which the court base their decision, are all cases of tenancy at will, properly speaking. Indeed, they rely upon ancient authorities, and trace them back beyond the period when tenancies at will were wont to be treated as tenancies from year to year.

Adams, Van Mess and Aden, for plaintiff.

Bailey and Marsh, for defendant.

If the case before us were a tenancy at will of the most absolute kind, so that the landlord might determine his will at pleasure* without previous notice, we should incline to follow the decision in Mass. Rep. But this is not such á case. Wiggins was a tenant at will, because the statute declares all estates created by parol, for more than a year, to be estates at will. Yethe was not liable to he turned out by Tuttle or the plaintiff, without a half years notice to quit. Not only was his tenancy, by the terms of it, to continue during the controversy between the plaintiff and Tuttle about these lands, but, after that, he had a right to purchase, and thereby retain possession. The statute, making all this a tenancy at will, dóes not deprive Wiggins o'f his right to half a year’s notice of the determination of the will before he is obliged to quit the premises. During Wiggins’ tenancy, so far from its being true that his possession Was the possession of the plaintiff or Tuttle, they had no right to enter upon him at all without the half year’s notice to quit: and such entry would be a trespass for which he might sue'. The possession of Wiggins was the possession of Tuttle and Catlin in its effect in creating a title by fifteen years possession , but not so in dictating who may sue for a trespass upon the land. It is said the landlord may sue tenant at will for a trespass he commits upon the land. That is true : and the reason is, the tenant by the act of trespass determines his will, and destroys the very tenancy he wishes to set up in his defence.

In the case before us, the tenancy was in fact continued by the mutual assent of parties, and, until notice to quit, and the half year elapsed, Wiggins had as good a right to hold possession against his landlord, (he committing no trespass to determine his will) as if he held a lease for years that would expire at the end of said half year after notice, to quit.

The judgment of the County Court is affirmed in both cases.  