
    James Massey against James Trantham.
    
      Columbia,
    
    1802.
    In an action to try titles to land under the act of 1791, some injury or trespass (however small) must be committed, and proved to have been committed on the premises, in order to maintain this suit-
    TRESPASS to try title to an island in the Catawba river, in Lancaster district.
    Motion to set aside a verdict, and for leave to enter a nonsuit.
    This action was brought to try the title to a small rocky island in the Catawba river, adjoining an island called Fishing Island, near Rocky Mount, a place celebrated for a shad fishery ; the island was good for nothing else ; the whole of Jt was a rock, but a very advantageous place for catching ghad-fish in the spring of the year.
    
      The plaintiff, in support of his title, produced a grant dated 6th of January, 1794, for fifty acres of land, including part of Fishing Island, and, as was supposed, the place in dispute. One or two witnesses were called, who proved that this place had been called Fishing Island for 20 years past, and the part in dispute “ Little Islandthat it was a flat rock about forty feet square, or nearly about the size of the site of the court-house here. The plaintiff rested his case upon his grant, and the explanations given by the witnesses.
    Mr. Richardson, for the defendant,
    moved the court for a nonsuit at this stage of the cause, on the ground that the plaintiff had proved no trespass committed on the premises in question, nor that the defendant had ever been upon the rock ; and that in this action, it was essentially necessary, that the plaintiff should prove that a trespass of some kind or other was committed by the defendant on the premises, before he could be entided to a verdict.
    Mr. Soli':': o:> James, in reply,
    said that in the present action, whiUi was solely for trying the right to the freehold, it was not necessary to prove any actual trespass, that the present action by the act of 1791, had been substituted for the old action of ejectment for trying title, where every thing was admitted or presumed, but the right and title only j and for this purpose, a clause in the act of 1792, amending the above-mentioned act, expressly directs, that the plaintiff when he sues out a writ of trespass for the purpose of trying title to land, shall mark on the copy of the process, that the action is to try title only; which was done in the present case. That the defendant’s appearing, and putting in his plea to the action, was tantamount to the confession of lease, entry, and ouster in the old action of ejectment, where every thing was admitted but the title alone. Besides, he said, that it was difficult, if not impracticable, to prove that any actual trespass was committed on a solid rock in the middle of a river, where neither shrub nor twig was growing, nor any other substance which was moveable. That the thing itself was not susceptible of external injury, and formed a marked exception to every other kind of freehold.
   The presiding Judge (Bay)

overruled the motion for the nonsuit, on the ground that he did not conceive it necessary in the action of trespass, to try titles to prove any actual trespass where the object of the suit appeared to be to try title only, and not for damages done the freehold, or for mesne profits. That the act of 1791, appeared to him to have a twofold object in view, first to abolish the old fictitious action of ejectment, and the string of subtilties attached to it; and at once, to go on to the trial of the right of freehold, in the real names of the parties claiming the land in dispute.

That in all cases, where damages were the object of the suit, an actual trespass must be proved; but where title only was the object, there it was unnecessary.

The defendant then went into proof of his title to the premises in question, and produced first, a grant to one Platt, dated 19th of June, 1772, for 180 acres of land, which it was alleged, included the whole of the rock in dis>» pute ; also, a deed of conveyance from Platt to himself for the same, dated 17th of March, 1795. Indeed, on inspection of the plat annexed to the grant under which the defendant claimed his title, this little island or rock was there very evidently delineated ; and the explanation of one of the surveyors sworn on the trial confirmed it, though the surveyor on the part of the plaintiff was of a different opinion on that point. But from the evidence of the thing itself arising out of a view of the plat and situation of the premises, and the corroborating testimony of the defendant’s surveyor, the Judge was strongly of opinion, and so charged the jury, that the defendant was entitled to a verdict. But the jury thought otherwise, and found for the plaintiff.

1st. This was therefore a motion to set aside this verdicfrf with leave to enter a nonsuit,- or, if that should be refused,

2d. For a new trial, on the groun'd that the weight of evidence was strongly in favour of the defendant, on the real merits of the question.

As the first point submitted to the court was a new one.; and turned upon the construction of the act of assembly,' which had made so material an alteration in the law for re± covering landed property, the Judges took time to consider this case, and after mature deliberation were of opinion,- that the judge in the circuit court at Lancaster, should have sustained the motion for a nonsuit, as in every action of trespass on lands, it enters into the very nature and spirit of the remedy, that some injury, however small, shall have been committed on the premises; and unless something of that kind be proved on the trial, there is nothing for the jury on. which to found a verdict. A bare threat on the rock to prevent the plaintiff- from fishing, or any obstruction of that sort on the part of the defendant, or preventing a canoe from landing there, would have been sufficient for the purpose of supporting the action; but as nothing of that nature was proved, the cause of action failed and the defendant was entitled to a nonsuit. The act of 1791, did not alter the nature of the law, in order to enable a party to maintain an action of trespass; it only changed the old action of ejectment into an easier and more intelligible mode of trying titles to lands by this suit, but left all its essential requisites attached to it in every other respect.

As the Judges were of opinion that the defendant was entitled to a nonsuit in this case, they did not go into a consideration of the second ground, or motion for a new trial.-

, Rule for setting aside the verdict, and for leave to defendant to enter up the nonsuit made absolute.-

All the Judges present,  