
    *Peter Rowland v. Joseph Rowland.
    Where the rightful owner is dispossessed of lands and kept out of possession, he can not maintain trespass for wrongs while thus out of possession, and his action for the original trespass may be barred by the statute of limitations.
    This case was reserved in the county of Richland, upon a motion for a new trial.
    The plaintiff, on October 30, 1832, commenced an action of trespass guare clausum fregit, in the court of common pleas, which’ came into this court by appeal.
    The declaration contains several counts, in all of which the trespass complained of is laid as having been committed in the month of April, 1826. In one count it is laid with a continuance.
    To this declaration the defendant pleaded the general issue, and gave notice that on the trial of the cause he would give evidence in bar of the action; that none of the several supposed trespasses complained of were committed within four years next preceding the commencement of the suit.
    Upon the trial of the cause to the jury, it was proven that in April or May, 1826, the defendant entered upon the premises and ousted the plaintiff of possession, and that the defendant continued1 in the exclusive possession until alter the commencement of this suit, when the plaintiff regained possession by an action of ejectment.
    The court instructed the jury that if they believed such to be the state of facts, the plaintiff’s right of action was barred by the statute of limitations, whereupon the jury returned a verdict for the defendant.'
    The plaintiff then moved for a new trial, assigning for cause:
    1. That the court mistook the law in the instructions to the jury.
    2. That the verdict was against the evidence.
    Mat, for plaintiff:
    An actual entry upon land is not necessary to perfect a title. 3 Ohio, 236, 237.
    A person having the legal title may maintain trespass against a wrong-doer, as the title draws after it the possession ; and the person having the legal title will be held to have the constructive possession, unless some other person is in the actual possession under color of title. 2 Johns. 22; 8 Ib. 220 ; 9 Ib. 147-149 ; 18 Ib. 40, 355.
    Although the trespass committed in 1826, may be barred by *the statute of limitations, yet the defendant, being in possession without color of title, every act by him committed down to the commencement of this suit, was a distinct trespass, for which he is liable, and, of course, upon these latter trespasses the statute does not operate. 4 Cowen, 329; 10 Wend. 639 ; 2 Hayw. 402 ; 2 N. C. 87.
    Burr, for defendant:
    A party must have the actual possession to enable him to maintain trespass. “Where an entry is followed by an ouster, the party can recover damages only for the mere trespass or entry; but if he make a re-entry, and lay his action with a continuando he may recover damages for the mesne profits as well as for the trespass.” 2 Johns. Cas. 27; Johns. 183.
   Judge Hitchcock

delivered the opinion of the court:

If the instructions given by the court to the jury were correct, there can be no pretense that the verdict in this case was against the evidence; on the contrary, it was in perfect conformity with that evidence. It is only necessary, therefore, to consider whether the court was mistaken as to the law of the case.

In order to maintain an action of trespass, quare clausum fregit, it is well settled that the plaintiff must bo in the actual or constructive possession of the premises upon which the trespass is committed at the time of the trespass. “Only the person who has the possession in fact of the real property to which an injury has been done, can maintain an action, quare clausum fregit; a general property not being, in the case of real property as it is in personal, sufficient to found this action upon.” The disseizee of land can not maintain an action of this nature for an injury done thereunto betwixt the time of the disseizin and his re-entry, for he does not, until his re-entry be made, regain the entry in fact of the land.” 6 Bac. Abr. 566; see also Bro. Trust. PI. 38, 305, 346; 2 Roll. Abr. 553; 2 Johns. Oas. 27; 12 Johns. 183. But it is not necessary that he should be in possession at the time of the commencement of the action. The trespass complained of may have been one by which he was actually disseized, and for that he may sue, although for any act done afterward he can not, until ho regains the possession. It would seem, however, that if the trespass be continued, and the disseizee first re-enter, he may lay his action with a continuando, and ^recover damage for the mesne profits, as well as for the first trespass. 2 Johns. Cas. 27. Or after a recovery in ejectment he may have his action for the mesne profits.

Proof of title, without proof of actual possession, is in general sufficient to put a defendant upon his defense, because the lega title draws after it the possession, as where lands are vacant the owner has in contemplation of law such possession that he may maintain trespass for an injury done to them. But if there be evidence of adverse possession, or of the possession of a tenant at will or for years, at the time of the trespass committed, the plaintiff must fail in his action. In the latter case, if the injury be such as to be prejudicial to the reversion, the lessor may have his remedy by an action on the case; but for the trespass merely the tenant alone can have an action. 6 Bac. Abr. 566, 567.

The cases quoted by the plaintiff’s counsel are mostly actions of ejectment, and are not analogous to the present case. We are aware that in the State of New York, and in some of the other states of the Union, it is a settled law that a defendant in ejectment can not protect himself under their statutes of limitation, unless he is in possession under color of title. In truth, such is, in substance, the provision of some of those statutes; but under our statute we hold the rule to be different.

In the case under consideration, the plaintiff was in possession of the premises until April or May, 1826, at which time the defendant committed a trespass, and disseized him of the lands* From that period until after the commencement of this suit the defendant remained in possession. For this injury the plaintiff had a right of action. It accrued in April or May, 1826. But for any subsequent act of the defendant he could not have an action in this form, because not in possession. By the act of February 25, 1824, for the limitation of actions, 22 Ohio L. 325, the law in force at the time this cause of action accrued, it is provided that actions of trespass upon property, real or personal, shall be brought within four years after the cause of action accrued, “ and not after.” This action was not commenced until October, 1832, more than six years after the cause of action ac* crued, and was, therefore, in the opinion of the court, barred by the statute of limitation.

The motion for a new trial is overruled, and the defendant may take judgment upon the verdict  