
    Caskey vs. Lewis.
    O'hd. Pep.
    Case 5.
    APPEAL FROM MORGAN CIRCUIT-
    Case stated.
    1. Wlien the action is trespass for an entry upon land, and the title of the land is put in issue, a right of appeal exists under the Code, though the damages assessed be less than one hundred dollars.
    2. In an action for breaking and entering plaintiff’s close, if defendant justify his entry and claim right of entry, the affirmative is with him, and he has the right first to introduce his testimony and to conclude the argument to the jury.
    3. One who resides upon a tract of land is by legal construction in possession of all the land included within the boundary of the survey, though not actually inclosed, and the occasional entry of a stranger to cut timber for fire-wood or make sugar, with or without the permission of the person possessed, does not oust the person in possession without an inclosure.. (1 Mar. 208; 3 J. J. Mar. 552; 4 Dana, 635.)
    Lewis brought his action against Caskey for entering upon his land, then, in his possession, and cut'ting, destroying, and carrying away his timber, whereby he sustained damages to the amount of $100.
    The defendant admitted the entry upon the land, describing in the plaintiff’s petition, and that he cut and carried away timber; but averred that the land belonged to him, (the defendant,) and that he had a right to do so.
    Upon this issue, the defendant insisted upon being permitted first to introduce his testimony, which the Circuit Court refused, and permitted the plaintiff first to introduce his proof, and to conclude the argument. A trial was had, and the title to the land was the principal matter litigated between the parties. The plaintiff had a verdict, and damages were assessed to thirty-six dollars, and judgment being rendered, the defendant has appealed to this court.
    
      W. H. Burns, for appellant—
    Argued, 1. That the Circuit Court erred in refusing to permit defendant first to introduce his proof; that his plea was affirmative, admitting the entry upon the land and taking the wood, and insisting upon his right to do so as owner of the land; that without proof on the part of the defendant to show his right of entry, the plaintiff was entitled to a verdict for nominal damages at least, which might be enhanced by proof of their extent. Cited Code of Practice, title 9, article 2, sub-division 2, subsection 3 and 6 of sec. 347; also article 13, part 1, chapter 1, sections 586 and 587.
    
      2. That the occasional entry upon the land of the defendant, by the plaintiff, to cut fire wood or make sugar, whilst the same was in the legal constructive possession of the defendant, did not amount to an ouster, and give the possession to the plaintiff Cited Smith vs. Morrow, 5 Litt. 210; Shrieve vs. Somers, 1 Dana, 239; Moss vs. Currie's heirs, lb. 266; Gaines vs. Buford, lb. 481; Smith vs. Mitchell, 1 A. K. Marshall, 208; Braxdcde vs. Speed, lb. 105; LiUard vs. McGee, 3 I. J. Marshall, 552.
    
      8. The right of appeal cannot be questioned. The pleading in tins case puts in issue the title to the land; although if a judgment be had for the plaintiff, it will be a judgment for money, yet the title to the land having been put in issue by the pleadings, becomes the main subject matter of confest, and one by which the parties and their privies respectively will be bound hereafter, and is in effect a decision of the right to the land on which the trespass is alleged to have been committed. Tb,e Code limiting the right of appeal was intended to apply to cases alone in which the right to recover money or personal property of less value than $ 100 was decided. But for another reason the right of appeal in this case exists, as the case was brought before that provision of the Code was adopted. Wherefore a reversal is asked.
    Hazlerigg, for appellee—
    Contended, 1. That there existed no right of appeal in this case. (See Code of Practice, section 16.); This suit is brought for money, and the damages assessed are less than one hundred dollars, and no appeal lies to this court.
    2. The answer amounts only to a denial of the plaintiff’s right to recover — there is no counter-claim, or set-off pleaded. The plaintiff alleges that the land on which the trespass was committed is his land— the defendant says the land is his. We take it as nothing more than a denial of the plaintiff’s right to-the land, and not such an affirmation of,right in himself as gives him the right first to examine his witnesses and conclude the argument tp the jury. The plaintiff had no right to reply; the plea was a mere-traverse of the facts alleged in the plaintiff’s petition. (See Code of Practice, page 35, chapter 5, section 132.)
    3. The proof of possession by plaintiff is satisfactory. Though plaintiff did not live upon the land on which the trespass was committed, yet he lived immediately on the opposite side of the river, had used it for sugar making, horse pound,’ getting timber from it for fuel and other purposes, forforty years, to a defined boundary. This is certainly as decided a possession as could be taken without actual residence and cultivation, and so far as acts and declarations can constitute a possession. Possession is always a question of fact for the decision of the jury. (Bovjles vs. Sharp, 4 Bibb, 551.) The appellant did not live within a mile of the land, and the land on which the trespass was committed is connected only by a narrow strip of mountain land. An affirmance is prayed for.
    1. Where the •action is trespass for an entry upon land, and the title of -the land is put in issue, a right of appeal exists under the Code, though the damages assessedbe less than one hundred dollars.
    December 9.
   Judge Simpson

delivered the opinion of the Court.

This action was brought by Lewis against Caskey for entering upon the plaintiff’s land, then in his possession, and cutting, destroying, and carrying away his wood and timber, whereby he had sustained damage to the amount of $ 100.

The defendant, in his answer, admitted that he had entered upon the land described in the plaintiff’s petition, and cut and carried off wood and timber as alleged, but he averred that the land belonged to him, and he had a right to do it.

Upon this issue a trial was had, in which, as the record shows, the title to the land was the matter really litigated between the parties. The plaintiff recovered a judgment for thirty-six dollars in damages, and the defendant has appealed. His right to appeal in such a case is denied by the appellee.

It is contended that by the provisions of 16i/i section of the Code of Practice, page 6, this court has no appellate jurisdiction over the judgment in this case. That section provides that “where the action or proceeding is for the' recovery of money or personal property, and the matter in controversy does not exceed one hundred dollars in value, or in behalf of the defendant, where the judgment of the inferior court is against him for money or personal property not exceeding in value one hundred dollars, unless reduced below that amount by a set-off or counter-claim,” the Court of Appeals shall have no appellate jurisdiction.

2. In an action for breaking and entering plaintiff’s close, if defendant justify his entry and claim right of entry, the affirmative is with him, and he has the right first to introduce his testimony and to conclude the argument to the jury-

3. One who resides upon a tract of land is by legal construction in possession of all the land included within the boundary of the survey, though not actually inclosed, and the occasional entry of a stranger to cut timber for fire wood or make sugar, with or without the permission of the person-possessed, does not oust the person in possession without an inclosure. (1 Marsh. 208; 3 J. J. Marsh. 552; 4 Dana, 635.)

Under the pleadings in this case, ihe action assumed a mixed character. The title to the land was involved in the controversy, and the plaintiff’s right to recover damages depended upon the decision of the question of title. Consequently it does not appear from the record that the matter in controversy did not exceed one hundred dollars in value, and the judgment of the inferior court against the defendant is not for money or personal property alone, but it also decides that.he had no title to the land which authorized him to make the entry upon it, complained of by the plaintiff. We are therefore of the opinion, that this court has appellate jurisdiction over the judgment in this case.

Upon the 'trial in the court .below, the defendant claimed that he held the affirmative of the issue between. the parties; that the burthen of proof rested upon him, and offered to introduce evidence to sustain his defense. The court decided that the burthen of proof rested upon the plaintiff, and .allowed him first to produce his evidence, and to conclude the argument before the jury. To this decision of the court the defendant excepted.

Upon the issue as made up, the plaintiff was entitled to a judgment without the introduction of any evidence. The defendant did not deny in his answer that the plaintiff was in the possession of the land, at the time the alleged trespass was committed, and admitted that he had done the acts complained of, but justified his conduct upon the ground that the land belonged to him. It devolved upon him therefore to prove this fact, otherwise the plaintiff’s right to a judgment was unquestionable, and he would have had to prove only the extent of the damage sustained by him. The defendant therefore had the right claimed by him, and the court erred in refusing to permit him to exercise it.

It appears from the testimony upon the trial, that the land in controversy was uninclosed woodland, the title to which was in the defendant, and that it was included within the boundary of the tract of land upon which he and his vendors had resided during many years. The plaintiff did not show any title to it, but claimed it by virtue of an alleged possession of upwards of twenty years. This possession consisted in its occasional use for the purposes of making sugar upon it, and cutting and hauling therefrom timber and firewood. There was some testimony tending to show, that these acts of his did not take place in consequence of any claim to the land asserted by him, but by the permission of the defendant’s vendors. If, however, he claimed the land as his own, these acts did not give him the possession of it, under the facts proved, although they might have been sufficient for that purpose, if the land had not been in the possession of any other person. But as the title to it was vested in the defendant and his vendors, and they resided upon the land during the whole time, they were in the possession of it, by legal construction, and they were not ousted of their possession by these acts of the plaintiff. They could only be deprived of their possession by an actual inclosure, and not by occasional entries upon the land, under the claim of right, which only amounted in law to trespasses upon their possession. (1 Marshall, 208; 3 J. J. Marshall, 552; 4 Dana, 635.)

The court therefore erred in telling the jury “that if Lewis entered upon the land in dispute, and made sugar on it from time to time, cut and used timber and fire-wood from it, and did such acts of ownership as warranted the jury to believe that he entered and thus used it with the intention of making it his own land, and had thus continuously held and used it, with such intention, for twenty years before the trespass complained of, it would authorize them to find for the plaintiff.”

Wherefore, the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.  