#### JOAB BROOKS vs. ROB. W. STINSON et al.

Where A. leased land to B. and others for the use of a public school, and the lessees put into the school room certain tables and benches, and before the expiration of the lease took them away : — Held that A. had no possossion actual or constructive, to enable him to maintain trespass qxtare clausum fregit.

(The cases of Dobbs v. Gullidge. 4 Dev. & Bat, 65, and Patterson v. Podenka?nmcry II Ire. 4. cited and approved.)

TRESPASS qxtare clausum fregit^ tried before Iris Honor Judge Caldwell, at Randolph, at the Special Term in January, 1852.

The trespass complained of and shown in evidence was, that the defendants entered a school-house on the plaintiff’s land, and carried away a table, benches, and some loose plank, it was in evidence that three of the defendants were school committee-men, duly appointed for district No. 37, in said county; and that the plaintiff had given them leave to have a public district school taught for three months in the said school-house.. It further appeared, that the articles taken away had been furnished for the use of the school, and placed in the house before the plaintiff purchased the land; and that said committee, accompanied by the other two defendants, entered the house and carried away tire said articles whilst the school was in session, before the expiration of the three months, to wit, on the last day of the school; and by the permission and consent of the teacher, who was present. His Honor, tire presiding Judge, charged the jury that if they were satisfied of the facts as above stated, the plaintiff did not have such a possession as would enable him to sustain the action. There was a verdict for the defendants accordingly, and from the judgment rendered thereon the plaintiff appealed.

No counsel for the plaintiff.

Miller, for the defendants.

Nash, C. J.

It cannot be necessary to cite an authority to show, that to sustain an action of trespass to land, the plaintiff must have either the actual or constructive possession at the time the act complained of is committed. If it were, the cases of *73 Dobbs v. Gullidge, (4 Dev. & Bat. 68,) and Patterson v. Bodenhammer, (11 Ire. 4,) decided by this Court, the one in 1838, and the other in 1850, are both directly to the point. The plaintiff Brooks owned the land, and leased it by parol to three of the defendants for three months, for the use of a public school. Á schoolmaster was put in possession bjr the school committee as their agent, and before the expiration of the lease, the defendants entered the house by the permission of the schoolmaster (who with his scholars rvere then in it,) and took away the articles, as stated in the case. The possession was at that time actually and legally in the committee by their agent the schoolmaster, and no trespass was committed by the defendants. But again : the articles taken were carried by the committee to the house, and placed in it for the use of the school or schoolmaster, and none of them had been annexed to the realty. They therefore, during the continuance of the lease, had a legal right to remove them. It is fully established, that a tenant for years may take down erections which are useful and necessary to carry on his trade or manufacture, and which enable him to carry it on with more advantage. Bac. Abr. titler “ Ex’rs,” letter H.; 2 East, 88. So he may carry away ornamental marble chimney pieces, and wainscot fixed only by screws; Elwes v. Maw, 3 East. 38; but he cannot, after he has left the premises, upon the expiration of his lease, return and take them away — if he does, he is a trespasser. We see no error in the charge, and the judgment is affirmed.

Per Curiam. Judgment affirmed.