State v. . Reynolds

Ashe, J., (after stating the facts). We are of opinion there was error in the charge given by his Honor to the jury. His Honor’ should have charged them that upon the evidence they should find the defendants not guilty. In the case of State v. Williams, Busb., 197, which was an indictment under the same statute, it was held that, “ to subject a person to the penalties of the act, he must be guilty of trespass.” And again, in State v. Watson, 86 N. C., 626, which was an indictment preferred for a violation of the same ■statute, this Court, speaking through RueeiN, J., refer to the case of State v. Williams with approval, and say, “the construction given to the Act by the Court is, that it was not intended to embrace a case of destruction of property by the owner thereof; but that to bring a case within it, the party accused must be shown to have been guilty of an .actual trespass upon the property of another.” Trespass to realty consists in a wrongful and unwarrantable entry upon the land of another, which the law entitles a trespass by “breaking his close,” (Brown on Real Property, 777), and possession is necessary to the maintenance of the action. Ibid., 778. It cannot be maintained without possession. Tredwell v. Reddick, 1 Ired., 56. *619 The possession must be either actual or constructive. Possession alone when it is actual, is sufficient to maintain the action against a wrong-doer; Myrick v. Bishop, 1 Hawks, 485. So, also, an action may be maintained for an injury to a constructive possession, which is a possession that is in legal contemplation attached to the title, and when a party sues for a trespass upon his land, of which he has only a constructive possession, he must show title. McCormick v. Monroe, 1 Jones, 13. But this possession has no existence when there is another in adverse possession. Dobbs v. Gullidge, 4 D. & B., 68. In the case before us, the prosecutor had neither the actual nor constructive possession of the houses demolished and ■carried off, for he admits he never had actual possession, and ■according to the facts adduced in evidence he had no constructive possession, for he failed to show, even if it were admissible in .a criminal action, any title to the land within himself or Roper, under whom he claimed. The judgment of the Superior Court must be reversed, .and a venire de novo awarded. Error. Reversed.