Gillespie v. Dew

1 Stew. 229

• Court: Supreme Court of Alabama
• Decided: July 15, 1827
• Status: Published

Opinion

JUDGE WHITE

delivered the opinion of the Court,

The. charge was in accordance with the English authorities, and with the decisions in some of the States of the Union. But in North Carolina, New-Yorlc and Connecticut,-it has been held that, where there is no adverse possession, he who has title, though he has never been in actual possession, may maintain the action of trespass.

The situation of,our country requires this modification of the English doctrine. In England, almost all the lands are occupied, but here, the proprietor often lives at a great distance from some of his lands which are not occupied by tenants, and unless they can maintain this action, they must be denied an important remedy for injuries to their property. Their right to this remedy is sustained by the strong argument of convenience, and by the respectable authorities referred to by the counsel for the plaintiff.

We are of opinion that, where there is no adverse possession, the title draws with it constructive possession, so as to sustain the action of trespass. Let the judgement be reversed and the cause be remanded.

Judge Gayle not sitting.