for some short time without molestation, or the building of a wall, or a dam, mound, or fence, which goes on for some weeks without interruption, and is then knocked down; (c) or the inclosure or cultivation of a piece of waste ground, the mowing of the grass thereof, or the pasturing of a cow thereon; for mere occupancy of land, however recent, gives a good title to the occupier, whereon he may recover as against all who can not prove an older and better title in themselves. (a) The digging of pits in a common, and throwing out heaps of earth, are prima facie proof of ownership of the heaps cast out, so as to support an action against a wrong-doer for carting away the heap. (b)

A mere intruder may have a possession sufficient to enable him to maintain an action against a person who does an injury to that possession; but he can not maintain any action in which it would be necessary to prove title. (c) 1

To maintain the action, however, there must in all cases be proof, either of title or of actual or constructive possession by the plaintiff at the time the trespass was committed. (ď) Where, therefore, the plaintiff held some marsh-land under a tenant for life, so that his interest ceased on the death of the tenant for life, and at the time of the determination of the life-interest, and down to the time of the commission of the trespass and the commencement of the action, the plaintiff had no servants or cattle, or anything upon the land to show that he continued in possession of it, it was held that there was no proof that he was possessed of the land, and that his action was not maintainable. (e)1

(3) Every, v. Smith, 26 Law J., Exch. 345. Dyson v. Collick, 5 B. & Ald. 600; 1 D. & R. 225.

(a) Catteris v. Cowper, 4 Taunt. 5 17. Matson v, Cooke, 6 Sc. 184; 4 B. N. C. 392.

(b) Northam v. Bowden, 11 Exch. 72.

(c) Harper v. Charlesworth, 4 B. & C. 589.

(d) See Harrison v. Blackburn, 34 L. J., C. P. 109.

(e) Brown v. Notley, 3 Exch. 221; 18 Law J., Exch. 39.

1 Linard v. Crossland, 10 Tex. 462; Halligan v. R. R. Co., 15 Ill. 558; Beach v. Livergood, 15 Md. 496; Tyson v. Shury, 5 Md. 540; Outcoult v. Danbury, I Dutch. (N. J.) 443; Reed v. Prince, 30 Mo. 442.

Either title or possession must be alleged on the part of the plaintiff. If the premises are alleged to be the premises of the plaintiff, he need not prove his possession thereof. Kennebec Purchase v. Case, 1 Mass. 483; Finch v. Allston, 2 S. & P. (Ala.) 83: Appleby v. Obert, 1 Harr. (Del.) 336. If the plaintiff relies upon possession only, he must show actual possession; constructive possession only applies in favor of the real owner. Stean v. Anderson, 4 Harr. (Del.) 209. But

Where certain commissioners of sewers placed a dam in a public navigable river, the soil or bed of which was not vested in them, it was held that they had no such possession of the dam as would enable them to maintain an action against a wrong-doer for pulling it down. (f) But if it be proved that contractors or commissioners of public works have got the permission of the owner of the soil for the erection of their works, or it be shown that they and their servants were in the actual possession of the works at the time of the commission of the trespass, this will be sufficient to enable them to maintain the action. (g)

Where a landowner gave the plaintiff license or permission to build a bridge on his land, for the use of the public, and the plaintiff built the bridge, and the defendant afterwards removed the parapets and carried away the stones, it was held that, on the severance of the stones from the land, they became chattels, the property in which was vested in the plaintiff, and that he was entitled to maintain an action against the defendant for carrying them away. ()

Navigation commissioners authorized by statute to make a river navigable and form towing-paths, on making compensation to the adjoining landowners, have no such possession of the soil of the towing-path, or of the artificial river-banks formed by deepening the river, and throwing out the soil from the bed to the sides of the stream, as will enable them to maintain an action for a trespass for cutting down trees growing in the soil of the towing-path or the banks, although they may have been in the habit of repairing, mowing, and trimming the banks, and exercising acts of ownership over them. (2)

Proof of the possession of the key of a building is no proof of the possession of the building itself. (k)'

If the plaintiff has come into the possession of the land after the trespass was committed, the trespass is not a trespass

(f) Duke of Newcastle v. Clark, 8 Taunt. 621.

(g) Dyson v. Collick, 5 B. & Ald. 600.

(h) Harrison v. Parker, 6 East, 154.
(i) Holiis v. Goldfinch, I B. & C. 213.
(4) Revett v. Brown, 5 Bing. 7.

where the plaintiff simply alleges possession, he may nevertheless prove actual title in himself and so entitle himself to greater damages. Hunter v. Hatton, 4 Gill. (Md.) 115.

1 Davis v. Wood, 7 Mo. 162.

against him, and he can not maintain an action in respect of it, (7) unless it is a continuing trespass. (m)

443. Proof by the reversioner.-When the action is brought by the reversioner in respect of some injury to his reversionary estate, proof of the receipt of rent by him will be prima facie proof of his title to the reversion. Thus, in an action by the reversioner for cutting down trees on land in the possession of his tenant, proof of payment of rent by the latter to the plaintiff is prima facie evidence of the plaintiff being the reversioner, and of the trees being his property. (")

444. Heir-at-law.-To sustain an action by an heir-at-law for trespasses committed upon land descended to him, where he is not in possession of the land, but the action is brought against a trespasser who contests his title, there must be proof of entry by the heir, and, after entry, his right of possession relates back, so as to support an action against a wrong-doer for a trespass committed at an antecedent period. (0)

445. Proof of disseisin and re-entry.-If one disseises me, and during the disseisin he cuts down the trees or grass, or the corn growing upon the land, and afterwards I re-enter, I shall have an action of trespass against him for the trees, grass, corn, &c.; for, after my regress, the law, as to the disseisor and his servants, supposes the freehold always continued in me. (p) By his re-entry the disseisee is remitted to his first possession, as if he had never been out of possession. (g) A person, therefore, who has the freehold and a right to the possession of land may, by a peaceable entry upon the land, acquire sufficient possession of it to enable him to maintain an action for a trespass against any person who, being in possession at the time of his entry, wrongfully continues upon the land. (r) It is not necessary that the person who makes the entry should declare that he enters to take possession. It is sufficient if he does any act to show his intention, and, having regained constructive possession by his peaceable entry upon the unlawful possession of the occupier, and being entitled to treat the latter as a tres

(7) Pilgrim v. Southampton, &c. Rail. Co., 18 Law J., C. P. 332.

(m) Holmes v, Wilson, 10 Ad. & E. 503.

(n) Jayne. Price, ante. Daintry v. Brocklehurst, 3 Exch. 209.

(0) Barnett v. Earl of Guildford, 24 Law J., Exch. 281; 11 Exch. 19.

(p) Liford's Case, 11 Co. Rep. 51a. (q) Holcome v. Rawlins, Moore, 461. (r) Butcher v. Butcher, 7 B. & C. 402; 1 M. & R. 220. Litchfield v. Ready, 5 Exch. 939.

passer, all those who come upon the land without title, after such vesting of possession, are trespassers, and liable to be sued as such. If a landlord, having a right to the possession of land on the expiration of a lease, sends his agent to the land to demand possession, and the agent enters and makes the demand, this is a sufficient entry to clothe the landlord with the constructive possesssion, so as to enable him to sue in trespass all persons who subsequently come upon the land by the authority of the tenant. (s)

446. Evidence for the defense.-Under a traverse of the allegation in the declaration, that the close was the close of the plaintiff,. the defendant is at liberty to show title in himself, or some other person under whose authority he claims to have acted. (t)

If the defendant relies upon a plea of liberum tenementum, he must prove that the land whereon the alleged trespass was committed was his own soil and freehold, and that he was entitled to the possession of it as against the plaintiff. By this plea the defendant admits, as we have seen, that the plaintiff is in possession, and that he himself is, prima facie, a wrong-doer; but he undertakes to show a title to himself which shall do away with the presumption arising from the plaintiff's possession. He may do this either by showing title by deed in the usual way, or by proving a possessory title for twenty years. (2) If, under this plea, the defendant establishes a title to that part of the close on which the alleged trespass was committed, he will be entitled to a verdict; for he is not bound to prove a title to the whole close, unless he has upon the record expressly undertaken to prove the whole close to be his soil and freehold. (r)

When the plaintiff has in his declaration described by name or by abuttals the close in which, as he alleges, the trespass was committed, and the defendant pleads liberum tenementum generally, the defendant can not by showing that he himself is possessed of a close of the same name and in the same vill, turn the plaintiff round, and prevent him from proving a trespass in his own close, as named in the declaration. (y) The defendant

(s) Hey v. Moorhouse, 8 Sc 168; 6 B. N. C. 52.

(t) Jones v. Chapman, 2 Exch. 812. (u) Brest v. Lever, 7 M. & W. 595.

(x) Smith v. Royston, 8 M. & W. 386. (y) Cocker v. Cromptom, I B. & C. 491. Lempriere v. Humphrey, 3 Ad. &

E. 186.

must make out his title to the freehold on the very spot described in the declaration; and, on his proving a prima facie right to enter the close because it is his freehold, it will be competent to the plaintiff to prove that it has been demised to him, and to show his lease, if he have one. () Where separate trespasses are alleged to have been committed in three different closes specifically described in the declaration, and the defendant, by his plea, says in effect that each of them was his own soil and freehold, the issues will be taken distributively, so that the plaintiff may have a verdict as to one close, and the defendant as to another. (a)

447. Proof of leave and license.-If the defendant relies upon a plea of leave and license, he must prove either an express permission from the plaintiff to the defendant to come upon the land, (b) or circumstances from which such a permission may fairly be implied. (c) If, after a parol license to use a way has been granted, the licensor locks a gate across the way, this is a revocation of the license, and the licensee can not lawfully break open the gate to use the way. (d) A licensee can, of course, take no better title or authority than the licensor himself possesses: and, therefore, if one tenant in common gives to the defendant license or permission to dig and carry away soil, or brick-earth, or turf, from the estate holden in common, this will give the defendant no right or title as against the other co-tenant in common, and will afford no answer to an action brought by the latter for a trespass. (e) If the license or permission of the wife, daughter, or servant of the plaintiff has been obtained by the defendant, this will be no evidence of a license from the plaintiff, unless the surrounding circumstances show that the wife, daughter, or servant had the plaintiff's express or implied authority to grant the license. f) Under a general plea of leave and license, the defendant is bound to prove a license co-extensive with all the acts of which the plaintiff complains; for if some of those acts are not covered and authorized by the license, the plaintiff will be entitled to