
    David Miller vs. John Bomar.
    AVbere plaintiff has a right, under contract, “of occupying” a house, he cannot, although not in the actual possession, maintain case against a wrong-doer for pulling the house down — his remedy is trespass.
    BEFORE WARDLAW, J., AT SPARTANBURG-, EXTRA TERM, SEPTEMBER, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ Action on the case, said to be for the obstruction of an easement.
    “ Tho. J. Linder and James A. Webster, by deed dated October 24, 1842, in consideration of one thousand two hundred and seventy dollars, conveyed to plaintiff and Lancaster Langston, two acres of flat land, on which was a tan-yard, ‘ also the right of occupying the house on the right side of the road, in which Langston lives.’ By deed dated May 29, 1843, L. Langston conveyed his interest to the plaintiff.
    “ Under these deeds, the plaintiff held possession of the tan-yard, and his title to it is yet undisputed. He'also, by himself and tenants, occupied the house above-mentioned, from 18.42 till February, 1853, unless some exception was established by the testimony of Alexander Boyd, overseer of the defendant, who said that before December, 1851, one Sellers, who is now dead, and who was in the house some how, paid rent in cotton to the defendant, (how much, or for what time, unknown.)
    “The tan-yard is within a mile.of the village of Spartanburg. The house is in the best situation for the residence of the tanner. There is no dwelling house on the two acres, nor any place for one, although a negro tanner, who generally lodged elsewhere, sometimes stayed in a cabin there. The plaintiff before 1851, ceased to occupy the house by a tanner, but leased it to persons who needed a cheap place of lodging convenient to the village, and who afforded some protection, to his negro tanner.
    “In December, 1851, Solomon Taylor, a carpenter, went into the house as tenant of the plaintiff, and remained there until February, 1858. The night after his departure, and when no person was actually living in the house, the defendant who then was, and for several years had been, in possession of the tract of land on which the house stands, caused the house to be pulled down, and next day the logs to be hauled off.
    “ The house was of logs, and cost perhaps one hundred dollars ; it was old, tight in the lower story, open above; would have lasted many years if it had been covered anew. The rent if taken separately, was worth fifteen to twenty-five dollars a year, but it was worth much more as an appendage to the tan-yard. After it was pulled down, the plaintiff abandoned the use of the tan-yard, whether for that reason or some other, did not appear.
    “ The defendant adduced proceedings in Equity, for partition of the estate of Lee Linder, of which John Linder, son of Lee and brother of Thomas J., was representative. Under these proceedings, the Commissioner in Equity in August, 1844, sold to H. J. Dean, the tract on which the house stands, without exception or reservation. In 1848 and 1844, John Linder, in leasing the tract, excepted the house. No other title was shown on either side. The defendant’s counsel spoke of deeds which the defendant had at home, and desired a continuance; but he had been already twice indulged. When the case was called, a time had been peremptorily fixed for the trial, and it seemed to me that a further continuance granted to the defendant, would be a delay of justice, and an encouragement of negligence.
    • “ I refused the motion for nonsuit, doubtful about the form of action, but preferring, by going on to a verdict, to take a course which in all events would end the litigation.
    
      “The jury found for the plaintiff, one hundred and sixteen dollars.”
    The defendant appealed, and now renewed his motion for nonsuit, on the ground, that the action should have been trespass and not case.
    
      Trimmier, for motion.
    
      Thomson, .contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, the only question is whether the action on the case is maintainable ? The plaintiff’s deed after conveying the tan-yard and lot says, “also the right of occupying the house on the right hand side of the road in which Langston lives.” The plaintiff under this, had possession for several years. The defendant, who had been for several years in possession of the -tract of land on which the house stood, and who was the owner of the same, finding the plaintiff out of possession, pulled down and removed the house. The plaintiff brought case and recovered. The defendant contends, and I think rightly, that the action should have been trespass.

The boundaries between case and trespass are, I think, in reference to real estate very clearly defined. In the first place it must be, to entitle the plaintiff to maintain trespass, an injury to real property corporeal: 1 Chitt. Plead. 139, 173, a. Secondly, the plaintiff must either have actual possession, or right of immediate possession.

It lies, as Mr. Chitty tells us in his first volume of Pleadings, 174, however temporary may be the plaintiff’s interest. The right to occupy a house, is enough, for “ a house,” is one of the subjects of trespass to which Mr. Chitty refers at 173, a, of his first volume. The case of Caldwell vs. Julian, 2 Mill, 294, is an illustration of it directly applicable to this case; there the plaintiff was in possession of a house on the land of the defendant, Robert Caldwell, by his consent; he with the other defendants entered and pulled down the house and damaged her property; it was held that trespass was the proper remedy.

The only authority relied on to sustain the action was Marshall vs. White, Harp. 122. There case was held to be the proper remedy for turning one out of a pew. But, that proceeded upon a plain and acknowledged principle that “case is the proper remedy for disturbing a party in the possession of a pew in a church, and where the pew is annexed to a house in the parish.” 1 Chitt. Plead. 142. Unless the pew be so annexed, it seems no action at law in England could be maintained. Mainwaring vs. Giles, 5 Barn. and Ald. 356, (7 Eng. Com. Law Rep. 129.)

The action should h|ive been trespass and not case.

The motion for a nonsuit is granted.

Whitner, G-lover and Munro, JJ., concurred.

Wardlaw, J.

I doubt still. The plaintiff was not in actual possession when the house was pulled, down. See Shep. Touch. 97, 190; Co. Litt.; 4 Burr. 1824.

Motion granted.  