Blevins v. Cole

ORMOND, J. — The motion of the plaintiff in error for a charge to the jury, presents the question, whether trespass quare clausum fregit can be maintained to recover damages without a previous possession. It has been repeatedly held in this court, that a title derived from the United States, would support the action of trespass quare clausum fregit against a trespasser, and this is conceded- but it is insisted that no action can be maintained on the title of the Government, to recover damages merely after abandonment by the squatter, and possession obtained by the purchaser from the United States. The court below charged the jury, that such was not the law'; and of that opinion is this court. By the purchase from the government, the purchaser became invested with all the title of the United States; and the occupation and culture of the land after such purchase, was a trespass against the purchaser. Can compensation for this injury, be avoided by. the abandonment of the premises before suit is brought? It is very clear that it cannot. If the possession had been recovered by suit, damages would also have been recovered for the injury done to the premises up to the trial of the cause, and it would be strange, if the right could be defeated by the mere abandonment of the possession. The plaintiff was entitled to recover for the actual injury done to the land, by the cutting down the timber; for injury done to the buildings or fences; injuring the soil; treadingdown the grass, fyc., after his purchase from the United States, and this is the appropriate action for that purpose. [212] The principle of the case of Gillespie v. Dew, 1st, Stewart, 227, is in point. The plaintiff in error, being a trespassor on the lands of the government, his possession, could not be adverse to the title derived from the government. The judgment of the court below is therefore affirmed.