Campbell v. Arnold

1 Johns. 511

Opinion

Per curiam.

The rule appears to have been long and ‘ well established, that there must be a possession in fact, of the real property to which the injury was done, in order to entitle a party to maintain an action of trespass quare clausum fregit. ■ A general property, in the case of real estate, is not, as in the case of personal, sufficient to support this action. Admitting the fee of the land to be in the plaintiff, his remedy for an injury to the freehold must be either against his-tenant, or against the defendant, in a different form of action." (3 Woodeson, 193-4. 3 Lev. 209. 6 Bac. ab. 566. new ed. and cases there cited.) The verdict must, therefore, be set aside, and a new trial granted, with costs to abide the event of the suit.

New trial granted.