Wilkinson v. Connell

Opinion by Mr. Justice Williams, If this action was ejectment we should have no doubt that it was tried correctly so far as this record enables us to judge. It was trespass quare clausum fregit. To enable a plaintiff to maintain this action he must have the possession, actual or constructive, of the close which he alleges has been invaded; If the land entered by the trespasser is unimproved, possession will be presumed to accompany the title, and this constructive possession will support an action. If the land is improved, that fact shows that it is in the actual possession of some one. In such case the plaintiff cannot rest on his title, but must show his possession. In the case now before us the parties, plaintiff and defendant, owned and occupied adjoining lots in the borough of Blairsville.. Wilkinson bought a strip eight feet wide from Connell to add to his own lot. Connell ran off this strip and on the line so run began the erection of a brick building. When the building was up about one story, Wilkinson caused the line to be run, and discovered, as he alleges, that the rear end of Connell’s building was three and one half inches over the true line, as it should be run, between them. This is as stoutly denied by Connell. The land measured off to Wilkinson he was in possession of. The land not measured off to him remained in the possession of Connell, and was built upon by him. If Wilkinson bought and paid for more land than has been turned over to him, he must recover it by his. action of ejectment, in which action he will recover according [130] to bis title without regard to the state of the possession. In trespass he must stand on his possession; and if Connell did not run the line in the right place, or turn over to him all that he wa§ entitled to demand under his purchase, it follows that he is not, and has never been, in the actual possession of the land so withheld from him, and occupied and built upon byConnell. The learned judge left the question of the plaintiff’s possession to the jury. He said in answer to the defendant’s fifth point: “We repeat,»if the plaintiff was in possession of this ground at the date of bringing this suit, and his possession had been invaded by the defendant, he is entitled to recover.” But at the date of the bringing of this suit the defendant’s brick building was standing on the strip in controversy. The possession of Wilkinson had not been invaded because he had not taken possession of any land on Connell’s side of the line as run and established by him, but Connell had remained in the actual, visible and exclusive possession of it in the preparation for and the erection of his brick building. There was no evidence that we are able to find in this record from which possession by Wilkinson could be found by the jury, and we think the question should not have gone to them. The ninth, tenth, eleventh and twelfth assignments of error are sustained and the judgment is reversed.