
    John Zorn, Resp’t, v. Frederick W. Haake, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    Trespass—Possession.
    The action of trespass guare clausum fregit can be maintained only by the party in possession.
    Appeal from judgment entered on a verdict in favor of plaintiff, and from an order«denying a motion for a new trial, made on the minutes of the court.
    
      Stephen Lockwood, for app’lt; Allen & Butterfield, for resp’t.
   Dwight, P. J.

The action was trespass to lands. The parties owned and occupied adjoining lots on the west side of Bailey avenue in the city of Buffalo. John Klin was their common source of title. He took title in 1867, to the entire front of lots Nos. 51 and 52 of the Buffalo Creek reservation, on the Williainsville road (now Bailey avenue), being by description, “20.50 ch., 1353 ft., in length along the west side of Bailey avenue.” The strip was bounded on the south by the south line of lot 51 and on the north by the south line of lot 53. The south line of lot 51 was the centre line of Clinton street, which crossed the Williarnsville road at right angles, and Clinton street was sixty-six feet wide; so that deducting from the entire length of the strip, as given in Klin’s deed, one-half the width of Clinton street, his front on Bailey avenue was, by description 1,320 feet. In the years 1872, 1873, 1880, and 1881, Klin sold off and conveyed several lots, varying from thirty to ninety feet front, all located in succession from the north end towards the south but in each of the conveyances the description commenced at the south-east comer of the lot conveyed which was described as being so many feet from the north line of Clinton street. Thus, of the first lot,—conveyed to Johannah Buse,—the front line was described as commencing in the west line of the Williamsville road (Bailey avenue), 1,260 feet from the north line of Clinton street, and running north sixty feet, which according to the description in Klin’s deed, would bring it to the north line of the strip, or the south line of lot 53. So, in case of each successive conveyance, the width of the lot conveyed was added to that of the lots previously conveyed, and, the sum being dedcted from the whole 1,320 feet front, gave the distance from the north line of Clinton street, at which the description began. This, in effect bounded each lot on the north by the south line of the lot next previously conveyed. The plaintiff’s lot was the seventh in order of conveyance and of consecutive location from the north southward. The six lots previously conveyed had an aggregate front of 350 feet, and the plaintiff’s of thirty feet, and, accordingly, the description in his deed commenced at a point 940 feet north from the north line of Clinton street. The next conveyance was in 1881, to one Martin, of a lot ninety feet front, and the description began at a point 850 feet north from the north line of Clinton street. This was the lot subsequently conveyed to the defendant. The plaintiff took his deed in 1880, at which time there was a fence on the supposed south line of the lot north of him, and he took possession of thirty feet front south of that fence. Within a year or two thereafter he built a fence part way through from the front, on his supposed south line, thirty feet south from the fence above mentioned; and within a year or two of the same time, Martin, the defendant’s grantor, completed the fence through to the rear of their lots, on the same line. The plaintiff testifies that he built his part of the fence on the line which his grantor pointed out to him as his south line, and that he and the defendant’s grantor agreed on the division of the fence between them, substantially as it was built by them at this time. The defendant took his title in 1890, taking possession up to the line of the fence last above mentioned. In January, 1891, he commenced to excavate clay for bricks in the north part of his lot near the fence. He did so without objection from the plaintiff, until the latter became alarmed for the safety of his fence, and objected to his coming nearer the line. Upon the defendant’s persisting, the plaintiff procured a surveyor to locate the line accurately, and was as much surprised as the defendant as to learn that the point 940 feet north from the north line of Clinton street, which, according to the description in both deeds, was the plaintiff’s southeast and the defendant’s northeast corner, fell nine and one-quarter feet south of the fence between their lots; but he proceeded thereupon to bring his action for breaking and entering his close and taking and carrying away the soil of his lot. That action, we suppose could be maintained on the facts stated, for want of possession in the plaintiff; and the objection was taken by the defendant in his motion for a nonsuit on that ground. The action of trespass guare clausum fregit has always been regarded as a possessory action, and one which could be maintained only by the party in possession. 4 Kent, Comm. 10, noted; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Stuyvesant v. Tompkins, 9 Johns. 61; Frost v. Duncan, 19 Barb. 560. It is true that the possession necessary to the maintenance of the action need not in all cases be actual possession As was said by Chief Justice Kelson in Holmes v. Seely, 19 Wend. 507:

“ The plaintiff must have the actual possession at the time, or, what is deemed equivalent, a possession which the legal title draws after it;”

But the legal title does not draw after it the possession of land which is at the same time in the actual, exclusive, and adverse possession of another, In Van Rensselaer v. Radcliff, 10 Wend. 639, it was held that a party having title to lands though not in the actual possession thereof, may maintain trespass against another, who is not himself in the actual possession of the premises. The language of Judge Savage at pages 652, 653 was: •

“ The possession of the plaintiff was sufficient against a stranger. He showed title to lands which were not in the possession of any other. He was, therefore, in possession, as, in such cases, the possession follows the title.”

See, also, Wickham v. Freeman, 12 Johns. 183, 184. The cases cited by counsel for the plaintiff, to the effect that title to the whole and possession of a part give constructive possession of the whole, do not apply to cases where the possession of the locus in quo is actually in the defendant. In Munro v. Merchant, 28 N. Y. 9, the question was what form of holding was sufficient to constitute an adverse possession in the plaintiff; but here was adverse possession in the defendant. It is impossible that two persons should be in possession of the same piece of land at the same time, unless they are joint tenants or tenants in common. In the case of Society v. Baker, 15 Vt. 119, it was held that “ to maintain trespass quare clausum fregit, the plaintiff must have either title or exclusive possession, and there must be no adverse possession in any other person.” Here the actual, exclusive and adverse possession of the defendant was unquestioned. The principles involved in this discussion were well stated by the supreme court of North Carolina in Dobbs v. Gullidge, 4 Dev. & B. 68, as follows:

“ The action of trespass quare clausum fregit, being a remedy for injury to the possession, cannot be maintained by him who had not possession when the wrong was done. But, when there is no actual possession in another, the law adjudges him in possession who has the property, and this constructive possession is fully sufficient to maintain the action.”

The answer here given to the plaintiff’s present action renders it unnecessary to consider the question which might have properly arisen in the case had the action been one asserting title in the plaintiff, and claiming to recover possession of the defendant. The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event.

So ordered.

All concur. '  