
    Hubbell against Rochester.
    In trespass for cutting timber on wild land, the plaintiff having no actual possession, it became necessary, in order< . to maintain his action, that he should establish a construetive possession, by showing title in himself. Oh his commencing this course of proof, the defendant admitted his AL 1, ' title. Verdict for the plaintiff, $3 50, single damages.
    The circuit judge now certified the above facts.
    The declaration which was entitled of August term, 1826, recited the statute of April 9th, 1805, (Laws, sess. 28, ch. 94,) and one count averred the trespass to be cone trary to the form of the statute aforesaid, and two others, generally, -contrary to the form of the statute in such case-made and provided.
    
      In trespass on lands of. which the plaintiff has no sifn^ii^must necessarily show Ins title, and thus make °^ea sien. Hence, in° this bCom% “d re0°^®r less trian j^ovj, he is entitled to full costs.
    Where, in trespass for cutting timber, the plaintiff recited and referred his claim to the old statute of 1806, which is repealed; held, that he could not recover treble damages,upon the statute of 1813, (1R. L. 625, 6.)
    
      A motion was now made in behalf of the plaintiff for full single costs, on the ground that title came in question; and that the damages bé trebled.
    
      I. G. 'Hubbell, for the plaintiff,
    cited Rogers v. M'Gregor, (4 Cowen, 531.)
    
      G. K. Averill, contra,
    cited 50 dollar act, (sess. 47, ch. 238, s. 1, 33;) 10 John. 382; 11 id. 405; Cowen's Treatise, 13, 14.
   Ouria.

It became necessary at the trial, to establish a constructive possession by showing title. This was essential *to make out a possession. The action was, there-tore, necessarily brought in a court of record; for a justice could' not try the question. The defendant could not take away the plaintiff’s right to elect this course by admitting title when he came to. the trial. The title was in question, and the plaintiff, therefore, entitled to single costs upon the statute, (1 R. L. 344, s. 4.)

But we cannot allow the damages to be trebled. By referring to the statute of 1805, though it is repealed by a subsequent act, the party has precluded our applying the declaration to the subsisting statute of treble damages, (1 R. L. 525, 6.)

This branch of the motion must be denied with costs.

Rule accordingly. 
      
       The plaintiff must be in the actual possession of the land, at-the time the injury is done, in order to maintain this action; (12 John. 183; 9 id.’61,; 1 id. 611; 3 id. 468; 2 N. Car. L. Repos. 89 ; 8 Mass. R. 415-; 2 Browne’s R. 106; 4 Yeates, 218; 6 Rand. R. 8; 9 Conn. R. 216;) which possession is generally evidenced by fencing, cultivating, or otherwise improving or using it; or exercising such other acts upon or about the same, as the owners of lands generally do. The mere payment of taxes on the land, or the execution of partition deeds, is not sufficient evidence of possession; (3 John, 388;) but proof that the premises have been used as a wood lot, for the purposes of fuel and fencing, although there are no fences or clearings upon it, is sufficient evidence of actual possession; (14 Wen. 239-;) so the actual possession of part of a farm, accompanied with a claim of title to the whole, will ¡constitute a poSSessibnbf the whole,‘though a part be altogether unimproved, atid-not'enblbséd byany kihd Of fence. 1 Caines, 858; 12-John. 452. ‘This is-a Very ¡common sbrt of possession in a new country,"where, though a man may own a large farm, yet he frequently has-but few acres under improvement. Where such unimproved part is trespassed upon, it would be asking too much to réquire-a regular deduction df’title "Upon paper, in ofder to vindicate the owner against a succeysion Of‘petty''injúneb, although "it "is many times very important,-for his safety, that the trespasser should be punished. The plaintiff may then, without doubt, show his own acts "and declarations at the time of his original entry-; and the deed given to him would be proper evidence to determine the extent of his possession, as well as his acts of Own. ership after his original entry. And this is not properly an inquiry into any thing more than a mere possessory title. It is an inquiry into such things as might be used in evidence of-a-higher title, but ate here-the mere evidence ’of possession.
      
        Where land is vacant, that is, where no actual possession can be proved, or- where it is unoccupied, the one having the legal title' thereto, shall be deemed to be in possession thereof; so as to maintain trespass; (2 Hayw. 402; 12 John. 183 ; Vid. 10 Wen. 639; Vid. also 8 T. R. 12; 14 East, 249; 5 Bing. 7; 1 East, 244; 4 Taunt. 517; Str, 1238 ; 6 East, 154;) and the landlord of a tenant at will, may have trespass against him, for any voluntary waste, which would determine the will. 7 John. 1; 9 id. 35; Vid. also 4 Kent's Com., 3d ed. 118. By statute, a reversioner, or remainder-man may maintain an action of trespass for an injury done to the inheritance. 1 R. S. 741, see. 8.
     