Savage, J.
Real action. The tenants plead nul disseizin, and under a brief statement, disclaim as to a portion of the demanded premises, and as to the remainder, claim an estoppel by virtue of a former judgment in an action of trespass quare clausum, in which these tenants were plaintiffs, and this demandant, and others, her agents and servants, were defendants, and in which the then plaintiffs recovered judgment upon a verdict of guilty. The brief statement also alleges that in the former action this demandant, then defendant, pleaded that the title and right of possession of the locus where the alleged acts of trespass complained of were committed, were- in her.
The demandant demurred to so much of the brief statement as set up an estoppel, and the demurrer was sustained. During the trial, touching the same subject matter, the tenants offered the record of the former judgment, which was excluded. They also [220]*220offered the plan made and returned by tbe surveyor appointed by the court in the former action, which was likewise excluded. To all these rulings the tenants excepted.
Exceptions. We may consider at the same time the rulings upon the question of estoppel, both the sustaining of the demurrer and the exclusion of the record, for an estoppel by judgment may be specially pleaded in bar, or it may be shown in evidence under the general issue. It is immaterial which. Cunningham v. Foster, 49 Maine, 68; Sturtevant v. Randall, 53 Maine, 149; Walker v. Chase, 53 Maine, 258; Whiting v. Burger, 78 Maine, 287. Both of these exceptions raise the same question, and that is,' — Is the judgment in the action of trespass qu. cl. a bar by way of estoppel to the real action/' We think it is not.
In order that the former judgment shall operate as a.bar, it must appear that the very question in issue here was in issue and determined there. But the issues in actions of trespass qu. cl. and in real actions are vitally distinct. In a real action the issue is seizin or title. In trespass qu. cl., it is rightful possession. The action lies for an injury to the possession. It is called a possessory action. Lawry v. Lawry, 88 Maine, 482. The gist of the action is the breaking and entering, that is, the invasion of a rightful possession. Hunnewell v. Hobart, 42 Maine, 565. As the law writers say, “ If a man’s land is not surrounded by an actual fence, the law encircles it with an* imaginary enclosure, to pass which is to break and enter his close.” The mere act of breaking through this imaginary boundary constitutes a cause of action. Addison on Torts, § 375. It is a violation of the right of possession. To sustain trespass qu. cl., proof of possession is essential. Abbott v. Abbott, 51 Maine, 575; Jones v. Leeman, 69 Maine, 489; Butler v. Taylor, 86 Maine, 17. But proof of title is not essential. Moore v. Moore, 21 Maine, 350; Brown v. Ware, 25 Maine, 411; Hunt v. Rich, 38 Maine, 195. The owner of land may not be in possession of it, while one may be in the rightful possession who is not the owner. Possession is presumed to be in the lawful owner. Griffin v. Creppin, 60 Maine, 270. But the contrary may be [221]*221shown. The fact, and the only fact, necessarily determined by a judgment of guilty in an action of trespass qu. cl., is that the plaintiff was at the time of the alleged trespass in the rightful possession of the particular locus where the acts of trespass were committed. Morse v. Marshall, 97 Mass. 519. It is not necessarily determined that the plaintiff had title. And this is true, though the defendant pleads soil and freehold, because the defendant may have had the title, and at the same time the plaintiff may have had the rightful possession. Therefore the judgment does not settle the title. And it follows that the judgment is not an estoppel to a real action, whether pleaded or offered in evidence.
In general, a judgment is conclusive only as to facts without proof of which it could not have been maintained. Hill v. Morse, 61 Maine, 541; or where the pleadings show that the subject matter was necessarily in issue. Blodgett v. Dow, 81 Maine, 197. In a case like the present, it must appear that the issue of title was not merely submitted, but was determined. Howard v. Kimball, 65 Maine, 308; Young v. Pritchard, 75 Maine, 513; Dutton v. Woodman, 9 Cush. 255. For these reasons, this court has uniformly held that a judgment in trespass qu. cl. is not a bar to a real action. Green v. Thompson, 5 Maine, 224; Dunlap v. Glidden, 34 Maine, 517; Young v. Pritchard, supra. In the latter case it appeared that the defendant in the trespass suit, which was relied upon as a bar, had pleaded soil and freehold, as in this case, but neither by the record, nor by evidence aliunde, was it shown that the jury had determined the issue of title. That case is decisive of this question. Were the rule otherwise, the judgment might be offered to prove exactly the contrary of what the jury determined.
As to the exclusion of the plan of the court surveyor in the former action, we think no error was committed. The tenants were allowed to use it as a chalk, which was all they were entitled to do. The surveyor was not called as a witness. Standing alone, the most that can be said for it, is that it represents the contention of these parties in another suit upon another issue. We think it was not admissible as evidence.
[222]*222Motions. The verdict was for the demandant. The parties agree that one part of the divisional line between them runs in a straight line from a spruce tree oh the Sheepscot River to a certain- pine stump which marks an angle. They disagree as to the location of the line from this pine stump to Back River, so-called. This latter line appears to have been first established by a deed in 1828, when the farm which embraced both the land of the demandant and that of the tenant was divided. This deed calls for a line running from a pine tree S. 35° E. to an ash tree standing on the shore of Back River. And the tenants claim that this line is now represented by a line running from the pine stump S. 30° 10 min. E. to Back River. They claim that the southerly end of this line was formerly marked by an ash tree. Beyond this line they have disclaimed.
The demandant claims a line starting at the same pine stump, thence running somewhat easterly of the line claimed by tenants to a maple stump, thence across an ice pond, formerly a swamp, to the end of a board fence at the southerly shore of the ice pond, thence by the fence and a stone wall to the same point on Back River where the line claimed by the tenants ends.
Wherever the original line as created by the deed in 1823 would now run, the tenants concede that the board fence and wall mark the present true line between the parties from Back River to the ice pond. This line is somewhat irregular and is not coincident with the line claimed by the tenants in their disclaimer, but is easterly from it. Nor is it .coincident with the line created in 1823 by a course then running S. 35° E. But the wall has been standing for a longer time than any witness can remember, and the board fence was built as early as 1845; and. all the time since 1845 at least, the adjoining owners have occupied respectively to the fence and wall, and neither now claims beyond these.
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Savage, J.
Real action. The tenants plead nul disseizin, and under a brief statement, disclaim as to a portion of the demanded premises, and as to the remainder, claim an estoppel by virtue of a former judgment in an action of trespass quare clausum, in which these tenants were plaintiffs, and this demandant, and others, her agents and servants, were defendants, and in which the then plaintiffs recovered judgment upon a verdict of guilty. The brief statement also alleges that in the former action this demandant, then defendant, pleaded that the title and right of possession of the locus where the alleged acts of trespass complained of were committed, were- in her.
The demandant demurred to so much of the brief statement as set up an estoppel, and the demurrer was sustained. During the trial, touching the same subject matter, the tenants offered the record of the former judgment, which was excluded. They also [220]*220offered the plan made and returned by tbe surveyor appointed by the court in the former action, which was likewise excluded. To all these rulings the tenants excepted.
Exceptions. We may consider at the same time the rulings upon the question of estoppel, both the sustaining of the demurrer and the exclusion of the record, for an estoppel by judgment may be specially pleaded in bar, or it may be shown in evidence under the general issue. It is immaterial which. Cunningham v. Foster, 49 Maine, 68; Sturtevant v. Randall, 53 Maine, 149; Walker v. Chase, 53 Maine, 258; Whiting v. Burger, 78 Maine, 287. Both of these exceptions raise the same question, and that is,' — Is the judgment in the action of trespass qu. cl. a bar by way of estoppel to the real action/' We think it is not.
In order that the former judgment shall operate as a.bar, it must appear that the very question in issue here was in issue and determined there. But the issues in actions of trespass qu. cl. and in real actions are vitally distinct. In a real action the issue is seizin or title. In trespass qu. cl., it is rightful possession. The action lies for an injury to the possession. It is called a possessory action. Lawry v. Lawry, 88 Maine, 482. The gist of the action is the breaking and entering, that is, the invasion of a rightful possession. Hunnewell v. Hobart, 42 Maine, 565. As the law writers say, “ If a man’s land is not surrounded by an actual fence, the law encircles it with an* imaginary enclosure, to pass which is to break and enter his close.” The mere act of breaking through this imaginary boundary constitutes a cause of action. Addison on Torts, § 375. It is a violation of the right of possession. To sustain trespass qu. cl., proof of possession is essential. Abbott v. Abbott, 51 Maine, 575; Jones v. Leeman, 69 Maine, 489; Butler v. Taylor, 86 Maine, 17. But proof of title is not essential. Moore v. Moore, 21 Maine, 350; Brown v. Ware, 25 Maine, 411; Hunt v. Rich, 38 Maine, 195. The owner of land may not be in possession of it, while one may be in the rightful possession who is not the owner. Possession is presumed to be in the lawful owner. Griffin v. Creppin, 60 Maine, 270. But the contrary may be [221]*221shown. The fact, and the only fact, necessarily determined by a judgment of guilty in an action of trespass qu. cl., is that the plaintiff was at the time of the alleged trespass in the rightful possession of the particular locus where the acts of trespass were committed. Morse v. Marshall, 97 Mass. 519. It is not necessarily determined that the plaintiff had title. And this is true, though the defendant pleads soil and freehold, because the defendant may have had the title, and at the same time the plaintiff may have had the rightful possession. Therefore the judgment does not settle the title. And it follows that the judgment is not an estoppel to a real action, whether pleaded or offered in evidence.
In general, a judgment is conclusive only as to facts without proof of which it could not have been maintained. Hill v. Morse, 61 Maine, 541; or where the pleadings show that the subject matter was necessarily in issue. Blodgett v. Dow, 81 Maine, 197. In a case like the present, it must appear that the issue of title was not merely submitted, but was determined. Howard v. Kimball, 65 Maine, 308; Young v. Pritchard, 75 Maine, 513; Dutton v. Woodman, 9 Cush. 255. For these reasons, this court has uniformly held that a judgment in trespass qu. cl. is not a bar to a real action. Green v. Thompson, 5 Maine, 224; Dunlap v. Glidden, 34 Maine, 517; Young v. Pritchard, supra. In the latter case it appeared that the defendant in the trespass suit, which was relied upon as a bar, had pleaded soil and freehold, as in this case, but neither by the record, nor by evidence aliunde, was it shown that the jury had determined the issue of title. That case is decisive of this question. Were the rule otherwise, the judgment might be offered to prove exactly the contrary of what the jury determined.
As to the exclusion of the plan of the court surveyor in the former action, we think no error was committed. The tenants were allowed to use it as a chalk, which was all they were entitled to do. The surveyor was not called as a witness. Standing alone, the most that can be said for it, is that it represents the contention of these parties in another suit upon another issue. We think it was not admissible as evidence.
[222]*222Motions. The verdict was for the demandant. The parties agree that one part of the divisional line between them runs in a straight line from a spruce tree oh the Sheepscot River to a certain- pine stump which marks an angle. They disagree as to the location of the line from this pine stump to Back River, so-called. This latter line appears to have been first established by a deed in 1828, when the farm which embraced both the land of the demandant and that of the tenant was divided. This deed calls for a line running from a pine tree S. 35° E. to an ash tree standing on the shore of Back River. And the tenants claim that this line is now represented by a line running from the pine stump S. 30° 10 min. E. to Back River. They claim that the southerly end of this line was formerly marked by an ash tree. Beyond this line they have disclaimed.
The demandant claims a line starting at the same pine stump, thence running somewhat easterly of the line claimed by tenants to a maple stump, thence across an ice pond, formerly a swamp, to the end of a board fence at the southerly shore of the ice pond, thence by the fence and a stone wall to the same point on Back River where the line claimed by the tenants ends.
Wherever the original line as created by the deed in 1823 would now run, the tenants concede that the board fence and wall mark the present true line between the parties from Back River to the ice pond. This line is somewhat irregular and is not coincident with the line claimed by the tenants in their disclaimer, but is easterly from it. Nor is it .coincident with the line created in 1823 by a course then running S. 35° E. But the wall has been standing for a longer time than any witness can remember, and the board fence was built as early as 1845; and. all the time since 1845 at least, the adjoining owners have occupied respectively to the fence and wall, and neither now claims beyond these. So much of the line has become established by convention or disseizin. It will be observed that there is a strip of land lying easterly of the line of disclaimer, and owned by the demandant. The tenants did not disclaim enough. This justifies a verdict of disseizin of some part of the demanded premises. Perkins v. Raitt, [223]*22343 Maine, 280. But we pass this. The real controversy is as to the location of the line between the pine stump and the southerly shore of the ice pond. The jury have found that the line claimed by the demandant is the true one. The pivotal point in the demandant’s case is a maple tree which it is claimed formerly stood about two rods easterly of the line claimed by the tenants, and in what is now the northerly shore of the ice pond. The demandant claims that this maple was a line tree; that it was marked as such, and that it was recognized as such by the owners on both sides; that this, tree is in, or very near, the line, established by the original deed in 1823; that when the ice pond, an artificial one, was first flowed in 1878, and the land cleared, the maple was left standing as a line tree; that it was afterwards cut down by those who were operating the ice pond; that from 1856 to 1878, a board fence, regarded by her and her predecessors as a line fence, extended from this maple to the present end of the board fence on the southerly shore of the pond; that the portion of the board fence where the ice pond now is, and the portion which remain's standing, and the stone wall, — all marked the line from the maple tree to Back River. The tenants do not deny the existence of a maple tree in that vicinity, but deny that it was a line tree, or that it was situated where the demandant claims it was. The tenants claim that the board fence across what is now the ice pond was substantially on the line claimed by them. The line from the maple tree to the southerly shore of the ice pond as claimed by the demandant is not, upon any theory, the same as that created by deed in 1823, but the line from the maple tree northerly to the pine stump may be. The demandant makes an angle at the maple tree. We think the position of the demandant is materially strengthened by two facts which do not seem to be disputed. First, the line claimed by the tenants, at the southerly shore of the pond, is not coincident with the old board fence from that point towards Back River. .Yet there is no question but that the old board fence is now the line, at that point.
A more important fact is this: The deed of 1823 calls for a line running S. 35° E. The variation in the compass since 1823 [224]*224amounts to 8° 2 min. If the line running in 1823 S. 35° E. be now located upon the face of the earth, it will run, as appears by the testimony of the surveyor appointed by the court, within a “few inches” of the maple stump claimed by the demandant to be the remains of the line tree. Another surveyor testified that the maple stump is in a line S. 32° E. from the pine stump, which is, making allowance for the variation of the compass, within two minutes of one degree of a line running S. 35° E. in 1823.
We do not forget that the tenants contend that the line of 1823, S. 35° E. ran to an ash tree, a definite monument, which controlled the course, and that the ash tree was in fact at the end of the line now claimed by them. But where the ash tree mentioned in the deed stood, and whether it was the one which was 'testified to as standing prior to 1869, at or near the end of the stone wall on the shore of Back River, were questions purely for the jury. We think the evidence introduced by the demandant, if believed, warranted the jury in finding that the line claimed by her across the ice pond is now the true line by convention or disseizin. The testimony was conflicting. The jury saw and heard the witnesses, and could judge of their intelligence and credibility. We certainly cannot say that the verdict is so manifestly wrong as to justify our intervention.
On the motion for a new trial on the ground of newly-discovered evidence, it is only necessary ,to say that, so far as the evidence is competent, it is merely cumulative, and it does not appear that it was not known or could not have been discovered by due diligence,' before the trial. Ham v. Ham, 39 Maine, 263; Brann v. Vassalboro, 50 Maine, 64. The statement of the juror to one of the tenants was incompetent and immaterial as evidence.
Motions ancl exceptions overruled.