#### THOMAS K. TORRANS v. EPHRAIM STRICKLIN.

A tenant from year to year, who waives his right to notice to quit, and goes out of possession, has no right to go back on the premises.

The abandonment of the premises by a tenant non animo revertendi, remits the landlord to the possession, and he may defend it against all intrusion.

Action of trespass guare clausum fregit, tried before Saunders, J., at the last Pali Term of Duplin Superior Court.

The plaintiff being the proprietor of the land in question, let it to the defendant on the following terms, viz., the defendant was to have the land to build and clear for two years rent free, but after that he was to pay rent. He went into posses*51tsion in 1848, and remained till March, 1855, when he left and went to a house of his own. In the month of April, of that year, the defendant returned to the premises and took some flooring out of the corn-crib, and boards off of the smokehouse and carried them away. The defendant had built these houses and put in these planks, and had put on the boards. In doing so, whether these articles were fastened to the fabrics, to which they belonged, with nails, was left uncertain by the testimony.

The Court charged, that though the defendant had been a tenant from year to year, and as such, was entitled to a notice to quit before he could have been turned out of possession by suit — yet, if he went out voluntarily, without insisting on such right, and the plaintiff took possession and afterwards defendant returned and took away the plank and boards, he was a trespasser. Defendant excepted.

Under these instructions, the jury found for the plaintiff, and after judgment, the defendant appealed.

IF". A. Wright and Allen, for the plaintiff.

No counsel appeared for the defendant in this Court.

Manly, J.

¥e are at a loss to perceive upon what point an exception to the trial below, is intended to be put. One who surrenders a tenement, which he has occupied as a tenant from year to year, and who goes back and removes the loose plank from a cabin, commits a trespass unquestionably. The right of such a tenant to six months notice is not inalienable, and if he waive it and go out, and the landlord accept the surrender and go in, the right of the landlord to claim the rent surely ceases, and the correlative right of the tenant to exercise dominion in the premises, must also cease. The tenant’s abandonment non animo reroertendl remits the landlord to the possession, and he may defend it against all intrusion, whether it occur one day or one year, after abandonment, whether it be perpetrated by the tenant who has left, or a stranger.

*52The legal rights of the parties are not changed by the fact that the house, from which the planks or boards were taken, was put there by the defendant, upon the contract, stated in the case, or by the other fact, that the planks were loosely laid upon the sills of the house and not nailed.

Upon the hypothesis put by his Honor, and affirmed by the finding of the jury, the defendant was out of possession and the plaintiff in, and the former, had, therefore, no right to go upon the land without license.

"With the principles here announced, all parts of the charge are manifestly consistent, and the judgment is, therefore, affirmed.

Per Curiam,

Judgment affirmed.