
    Rutland County,
    February Term, 1828.
    
      Elizabeth Cooley vs. Allen Penfield.
    
    In order, to maintain ejectment]there must be a disseizen,or wrongful possession.
    This was an action of ejectment, brought to recover the seizen and possession of apiece of land lymgmPittsford, in said county. It was fried in the County Court, at April Term, 1827, on the general issue, Skinned,, Ch. Justice, presiding. The plantiff showed a title in herself to the premises demanded ; and in order to prove the defendant in possession, evidence was given, that in the year 1810, one Amos Crispin erected a trip-hammer shop west of a small stream of water, and west of the line of plaintiff’s said land, which line was the centre of said stream; and that by the verbal consent of one Caleb Cooley, the husband of the plaintiff,, and former owner of the premises, the defendant had also built a dam across said stream, about twenty or twenty five feet on the banlc of the land in question, east of the said west line, and had raised a pond of water so high as to flow six or eight square rods of said land; and that the said Caleb Cooley, at the time of giving the verbal licence to Crippin-, said there would be no difficulty between them; but refused to give any deed of conveyance, saying he might want to put a spinning-wheel there at some future time — That in April, 1824, the ■plaintiff applied to the defendant, who was in possession of said shop, and in the use of the water of said pond, to remove the dam from the plaintiff’s land, and had often afterwards, and before the commencement of the action, requested the defendant to take a lease of the premises, or a suit would be brought; but that the defendant had refused to remove the dam, or take a lease from the plaintiff — That on the 25th day of March, 1825, the defendant procured a deed of warranty from Crispin of the land in question. It did not appear in evidence that the defendant had entered upon the premises, or had done any act, after such notice to remove the dam, except in the use and occupancy of the shop as he had usually done. The court were of opinion that the plaintiff had a right to use and occupy the land east of the centre of the stream, and to remove and pull down the dam, and that the defendant, having never entered on the premises, nor otherwise having done any act after the notice as aforesaid, she was not entitled to recover. A nonsuit was entered under a rule, that the plaintiff might move to set it aside : and the court having refused to set aside the nonsuit upon the motion of the plaintiff, grounded on the facts herein before stated, the plaintiff filed exceptions to the opinion of the court, which were allowed, and the cause ordered to be carried to the Supreme Court for a final decision thereon.
    
      The cause now came before the court for a hearing on the motion to have the nonsuit set aside, on the ground -that the County Court had erred in their opinion as before mentioned.
    
      C. Langdon,for the plaintiff. — 'The only question presented for the consideration of the court, is, will .an action of ejectment lie to recover the possession of land on which the defendant, or his grantor, has erected a dam, and overflowed it with water, and continues in the use of the dam, and overflowing of the land by water, against the will of the owner. Wherever a right of entry exists, and the interest claimed is tangible, so that possession can be delivered, ejectment will lie. — 9 Johns. Rep. 298'. So for any corporeal right of which possession may be had. — Sw. Dig. ,507. — Adams on Ejectment, 16, 17, 18 and 19. — It lies by the owner of the soil for land which is a part of the highway, where-ever another had built. — 1 Burr. 133. — It lies for grass growing on land. — Cro. Car. 262. So for herbage. — Darden's Rep. 330.--2 T.R. 151. It lies for mines. — Doug. 305. — 1 Salic, 233. — 1 Burr. 627. It lies for a boilery of salt; for standing water.— Co. JM.p. 56. — Adams on Ejectment,p. 18. — 9 Johns.'298 ; but not for a water course, or running water; but will lie for land over which it runs. It lies for a fishery, tithes, &íc. — Arch. Prac. 503-4.
    
      Williams, for the defendant — contended, that the plaintiff, in order to his recovery, must not only prove his title, but also that defendant was in possession of the premises demanded, and an ouster of the plantiff. 'The disseizin, which must be proved, must be a forcible entry on the land, and ,a disseizin of the plaintiff. 7 East, 312, Coolc vs. Danvers. — 12 East, 141, ‘Hughes vs. Thomas. The case shows neither an entry nor an occupation by defendant of plaintiff’s land; but on the contrary expressly negatives the idea of an entry and ouster. The dam was erected by permission of the owner, under whom plaintiff claims there was no contract that he should remove it when required. An entry, for the purpose of removing it, would have made the defendant a trespasser on the land of the plaintiff. The occupancy of the mill on the defendant’s land, can in no sense, be a possession of the plaintiff’s premises. The remedy of the plaintiff, if 'any, was to remove the dam, which he had a perfect right to do.
    
      
      C. Langdon, for plaintiff.
    
      C. K. Williams, for defendant.
   TURNER, J.

delivered the opinion ofthe court. The case admits that the defendant has not entered, disseized, or been in possession of the land described in the plaintiff’s declaration. Now, in order to maintain an ejectment, there must be a disseizen or wrongful possession ; and this wrongful possession must exist at the commencement of the suit. The only complaint against the defendant, consists in his “ not removing the dam off from plaintiff’s land,” after notice. But, the plaintiff had the right to remove it, or such part of it as stood upon her own land ; but on what possible ground, can the plaintiff require the defendant to do it ? And why is he bound to do it more than any other person ? Were it ever pretended that the permission given to erect, or to usethedam, imposed an obligation on defendant to pullit down, on request, still ejectment is not the proper remedy for such breach of contract. His occupation of his own shop which stands ori'his own land, cannot be considered a wrongful possession of the plaintiff’s land, or any possession at all.

The authorities cited by the plaintiff relate only to the interests, ■a violation of which lays the foundation for this action; but they do not tend to show that the acts and omissions complained of in the present case subject the defendant to this action. Therefore, nonsuit must stand.  