
    Comfort E. Chorman’s Administrator vs. the Queen Anne’s Railroad Company.
    
    
      Case—Real Estate; Action for Injuries to—Possession—Variance—Pleading—Nonsuit.
    
    Where in an action for injuries to the real estate of the plaintiff’s intestate, caused by water being drained thereon by the defendant from its right of way, the declaration alleges that the said intestate was in possession of the real estate, and the evidence shows that her husband alone was in possession, there is a fatal variance and a nonsuit will be entered.
    (October 17, 1901.)
    Lore, C. J., and Grubb and Pennewill, J. J., sitting.
    
      Robert G. White for plaintiff.
    
      Charles W. Cullen and Charles M. Cullen for defendant.
    Superior Court, Sussex County,
    October Term, 1901,
    Action on the Case, to recover damages to the real estate of Comfort E. Chorman by reason of water drained upon her land by the Queen Anne’s Railroad Company from the right of way of the said railroad company.
    After the plaintiff had put in his testimony, the defendant moved for a nonsuit on three grounds:
    
      First. That the action was brought by Comfort E. Chorman to recover for immediate injuries to real estate, the declaration alleging “ injuries to the property seized in her fee as possessed,” while according to the proof adduced on the part of the plaintiff, Comfort E. Chorman was not in possession of the real estate at the time the suit was brought, but the said real estate was then in possession of her husband, Philip H. Chorman. That there was therefore a fatal variance between the proof and the allegation in the declaration, and the plaintiff was therefore not entitled to recover.
    
      Jackson vs. Prescott, Maul and Selwyn, 201.
    
    
      Mr. White:
    Without citing any authorities, our answer to the first point raised is this: The proof is that the husband and wife lived together, and while she gave up to him the use of the land, was that not possession in her as well as in him ? She was not dispossessed. She did not remove from the land at all, but was there living on the land and her husband had control of it.
    
      
       See case of Philip H. Chorman vs. Queen Anne's Railroad Company, p .407
      
    
   Lore, C. J.:

He testified from the stand that he alone was in possession of it. You allege that Comfort E. Chorman alone was in possession.

Let a nonsuit be entered.  