
    Robertson's adm'r. vs. Rodes.
    ERROR TO MADISON CIRCUIT.
    Uxan.
    Case 1.
    Case stated.
    December 9.
    1. Action on the case cannot be maintained by one having the legal title to land against another who enters, cuts timber, quarries stone, and commits like trespasses. The act of January 20,1842, (3 Statute Law, 573,) does not change the form of action or enlarge the remedy which previously existed for trespasses, and personal representatives cannot maintain any other form of action than such as previously existed in behalf of the deceased owners of land.
    2. If the owner of land have the actual possession by having entered thereon, with the intention to possess it, and whilst so possessed another enters and commits trespasses, such as cutting timber, quarrying stone, &c.) the only remedy is by action of trespass, m et armis. If there be no actual possession, it does not follow that the action on the case lies.
    3. The owner of a remainder or reversion, may, in some instances, maintain case for an injury to the estate, done by another; and the tenant in possession may maintain trespass for the forcible injury to his possession.
    
      4. This court will not reverse, at the instance of plaintiff, though there may have been erroneous instructions given, if the plaintiff shows no cause of action in his declaration.
   Chief Justice Hise

delivered the opinion of the court.

The main question presented in this record is, whether an action upon the case can be maintained by one who has the legal title, and right of possession, to land, against one or more defendants for entering upon thp land and injuring the same, and impairing its value, by ploughing it, by quarrying stone, and cutting down the valuable timber upon it, and for like trespasses.

1. Action on the case cannot be maintained by one having the legpl title to land against another who enters, ' cuts timber, quarries stone, and commits like trespasses. The act of January '20,-1842, (3 Stfoute Law, 573,) does not change the form of action or enlarge the remedy which previously existed for. trespasses, and personal representatives cannqt pjaintqin any other form of action than such as previously existed in behalf of the ¡deceased owners of lapel-

It is the opiniop of this court that such action eould pot b,e maintained by the owner himself, if living, and consequently not by his administrator after his death, as attempted in this case. For although by the act approved January 20, 1842, (3 Statute Law, 573,) “actions of trespass vi et armis, or of trespass on the case, as the facts may require,” for injuries done to the real estate of a testator or intestate in his lifetime, may he maintained by or against the personal representatives after the death of the owner or trespasser, yet, by this statute, the form of action and the legal remedy for injuries to real estate, as it previously existed, has not been changed or enlarged in any way, and the executor or administrator of a deceased land owner cannot, under this act, maintain any other action for trespasses upon real estate, than such ps could have been maintained by the proprietor himself, if living. In other words, the act referred to did not change the remedy at all, but only authorized such action as might have been previously brought by the owner of the land in his lifetime, to bp maintained after his death by his personal representative. That such is the true intent and meaning of the act is clearly indicated in the expression used therein, that either trespass or case might be brought, as the facts may require. If the nature of the injury or the state of facts, therefore, be. such, as that the form óf the action by which the remedy is to be obtained is trespass vi et armis, if brought by the owner, then, after his death, his representatiye must adopt that form; of action to recover for such injury. So if the facts of the dase or nature of the injury would require the action to be in ease, if brought by the deceased, then the same fqrm of action may be. resorted to by his administrator or exequtor, and pot otherwise,.

2. If the owner of la'úd have the actual possession; by having entered thereon, with the intention to possess it, and whilst so possessed another enters and commits trespasses,' such as cutting timbéV,' quarrying stone, <&c., the only remedy is b'y action of trespass vi et armis. If there be nd aótual possession,' it do.es nót follow that the aé'tion on the ¿ase lies;

á. The owner óf a remainder or reversion, may, in somó instances, maintain case for an injury to the estate, done by another; and' the tenant iá’ possession may maintain' trespass for the forcible injury to' his possestiSii'.

' If the owner of land have the actual possession thereof, by having entered thereon with intention to possess it, or by residing upon or occupying it, and whilst so possessed, another enters upon it and commits trespasses similar to those charged in the declaration in this case, the only remedy for the private injury to the land is by the action of trespass met armis; 'and the action upon the case will not fie for such injuries. If the owner of the land has never entered' upon it at all, and was not in possession thereof at the tirrie such injuries, and trespasses, as quarrying stone' and destroying the timber upon it, were doné and committed, in such case the action of trespass' éi et armis could not be maintained, for there is rio fule of pleading better settled than that the actual possession of the land is riecessary to authorize a resort to this actiori. Yet it does not follow, that fot such injuries to the land, committed when the owner was not iii possession, that casé' is the proper action, or that it can be adopted or resorted to for remedy. This court is not advised that such action has ever been allowed in this state, or that any authority, of that any form or precedent can be found in any standard English or American work ón pleading, showing that the action upon the case has been or may be adopted as the remedy for injuries to real estate belonging to one who, though not in actual possession', has the legal title thereto, and the right to the immediate possession thereof, as averred in' the declaration' in this casé.

It is true, that where the* right of possession as well ás the actual possession of land is h'eld by one, rind where another i’s entitled to an estaté in remainder, ór a reversionary interest in such land, in such cases, as the owner of the remainder or of the reversionary interest, because he has no possession, cannot maintain trespass vi et armies, for injuries to the land, he rriay resort to the special action upon' the case’for such trespasses as are charged in this declaration, and maintain it upon averring and pro’ving that the value of his remainder or reversionary estate and interest iir the land has been impaired and reduced by such trespasses.

In such case the tenant in possession may have his action of trespass for the forcible injury to his possession by entering upon the land and the taking stone and timber from it, and at the very same time the remainder-man, or owner of the reversionary interest, may maintain his action upon the case for the same trespasses, by alleging and showing that the possession of the land is held by another; that he as remainder-man or reversioner is entitled to the land upon the termination of the intermediate estate, and that his interest in remainder or reversion has been impaired, and injured by such trespasses. But in this case it is both averred, in each of the several counts in the declaration as well as shown by the proof in the cause, that plaintiff’s intestate was, at the time the trespasses complained of were committed, the present legal owner of the land, and if not in the actual possession thereof, yet that he was all the time entitled to the land and to its immediate possession; and although it is averred in the declaration that the trespasses, as stated, were injurious to the reversionary interest of the plaintiff’s intestate, in the land, yet, as by the other averments and the proof in the causes. it is stated and shown that the plaintiff’s intestate held no interest in remainder or reversion, but that he was the present absolute legal owner of the land in fee simple, such contradictory and inconsistent averments may be regarded as betraying a consciousness, upon the part of the; draftsman of the declaration,-that there was no established rule of pleading and no form or precedent to be found in support of the form of action to which he was about to resort, -and hence, although the fact is shown to be untrue by the proof in the cause, and by the other averments in the declaration, yet, under the apprehension that his declaration would not be good otherwise, the plaintiff makes the inconsistent, and unsustained averment Chat by reason of the trespasses committed by the defendant, his intestate had been greatly prejudiced and injured in his reversionary interest and estate in and to the land.

_ 4. This court trill not reverse, at the instance of plaintiff, tho’ there may have been erroneous instructions given, if the plaintiff shows fió cause of action in hiS declaration;

Turner, for plaintiff; Caperton, for defendant'.

If the declaration is to be cóñstrued as one in case, for an injury to the remainder or reversionary interest of the plaintiff’s intestate in the land trespassed upon, then the plaintiff has failed to sustain his action by the proof in the cause, which shows' beyond contradiction or doubt that the plaintiff’s intestate held no estate in remainder or reversion at the date of the trespasses complained of, but that he was then the absolute and present legal owner of the entire estate" in fee simple of the land, and the verdict of the jury and judgment of the court for the defendants, was proper and right upon! the evidence, and the court properly refused a new trial, notwithstanding erroneous instructions may have been given at the instance of defendant, and! proper instructions refused to the plaintiff, for there could have been ho correct verdict given other than the one actually rendered in behalf of the defendant.- But it is manifest from the averments in the decláration itself, taken collectively, that the plaintiff’s intestate was the absolute' owner of the land trespassed upon at the time, and that he' was then actually possessed or entitled to be immediately possessed of the land; arid from his own* showing, upon the face of his own declaration, it is manifest that his actioii upon the case could not be maintained ; therefore, as thé verdict of the jury and judgment of the court for the defendant was hot érroneous, but justified, because the action could not be maintained, and because the court in the first instance erred in favor of the plaintiff and against thé defendant, by overruling the said defendant’s demurrer to the plaintiff’s declaration. Upon the whole éase the final judgment of the court is not erroneous,- and therefore affirmed.  