#### JOHN B. SMITH vs. JOHN E. FORTISCUE.

The lessor of a tenant at will cannot maintain an action of trespass guare clausum fregit against one for an entry upon the premises, unless there was some actual injury done to the land, besides the mere technical injury of treading down grass, &c. ,

Action of trespass quare clausum eregit, tried before bis Honor, Judge Person, at tbe last Pall Term of Hyde Superior Court.

Tbe plaintiff was tbe owner in fee of tbe locus m quo, and tbe trespass complained of was, tbat tbe defendant went on tbe land and removed a quantity of sawed timber left there by one Goff. There was evidence tending to show tbat at tbe time of this entry, one Sawyer was in possession of tbe land in question as a tenant at will of tbe plaintiff. And among other things, it was insisted by defendant’s counsel tbat this action could not be maintained by him during tbe occupation of such tenant.

Bnt bis Honor charged tbe jury “tbat although Sawyer might have been there as a tenant at will of tbe plaintiff, tbat fact did not debar tbe plaintiff of this action.” To this charge tbe defendant excepted.

Yerdict for plaintiff. Judgment and appeal.

Donnell, for plaintiff.

No counsel for defendant.

Pearson, J.

If a stranger breaks tbe close of one having the particular estate, and besides injuring him fog treadvng down Ms grass, taking away bis crop, &c., also commits an injury to tbe inheritance, by cutting timber trees, tearing down bouses, &c., the particular tenant may have trespass quare clausum fregit for tbe injury done immediately to him, and tbe remainder-man, or reversioner, may have an action of trespass on tbe case, in tbe nature of waste, for tbe injury to the inheritance. This doctrine is discussed and settled by Williams v. Lanier, Busb. Rep. 30.

*66In. the case of a tenant at will, there are many authorities for the position, that although his action must be trespass quan'e clauswn fregit, still the action of the lessor may also be trespass guare clomswn fregit, provided an injury is done to land, as by tearing down houses, “ subverting the soil,” &c. In 2 Rollo’s Abrigt. 551 and 49, it is said, “if a man subverts land which is under a lease at will, the lessee may have trespass against him, and shall have damages for the profits, and the lessor may have another action of trespass, and shall recover damages for the destination of the land.” This authority is relied on by Chief Babón Comyn who lays down the same position in his Digest 7 vol. Title Trespass, B. 2. Such is also the opinion of Hargrave Co. Lit. 57a, note 2, and of Serjeant Williams, 1 Saunders 322a, in note 5; and the doctrine is traced back to a case in the year-books in the time of Henry VI; but it is distinctly confined to cases where damage is done to the land, and not merely to the possession, as by treading down grass, &c.

On the contrary, there are many authorities for the position, that oven in a case of a tenancy at will, the lessor can, under no circumstances, maintain an action of trespass guare clausum fregit j because the gravamen of that form of action is an injury to the possession, and that “case” is the only action which the lessor can maintain; among the number is Chitty, in his pleading, and he has been followed bj many of our sister States.

It is not necessary for us to take sides in this controversy, because, taking it either way, there is error in the decision below. There was no damage to the land, for which the lessor has a right to complain. The act committed was, “ the defendant went on the land and removed a quantity of sawed lumber which had been put there by one Goff.” If any one had a right to complain of this act of the defendant, it was the tenant at will; there is no authority, and no principle, upon which the lessor can be allowed to maintain an action of trespass gua/re clausum fregit in regard to it; for, although we may be disposed to concur with the doctrine, that inas*67much as the estate of a tenant at will is not sufficient to support a remainder, his possession may, in a great degree, be considered as the possession of the lessor, still, all of the -cases and authorities, from the year-books down, agree that if the lessor can maintain trespass quaere clauswn. fregit at all, it is only where damage is done to the land.

This subject is discussed fully in Starr v. Jackson, 11 Mass. Rep. 520, and it is apparent, that, although the weight of “the old authorities” is in favor of the right of the lessor to maintain the action of trespass quaere clausum fregit, yet, the position, taken by Chitty, that trespass quaere clausum fregit can never be maintained unless the jdaintiff is in possession, and that it is absurd to suppose that a tenant at will may maintain that action on his possession, and the lessor may also have the same action, pressed hard on the court. With this, however, we are at the present not concerned, for as no damage was done to the land, the action cannot be maintained. There is error.

Per Curiam.

Judgment reversed and a venire de novo awarded.