DixoN, C. J.
Whether the overreaching of the bottom of Eckstein’s foundation wall eight inches on to the land of Me Court, or, as some of the witnesses testify, the projection of some of the stones of the foundation eight inches over on to Me Court’s lot, constitutes such an ouster or disseizin of Me Court as will enable him to maintain ejectment, is a matter of which I have very great doubt. I am strongly inclined to think that it does not'. My brethren, however, are of a contrary opinion, and think that it is such an occupancy by Eckstein, and disturbance of the full and free use and enjoyment of McCourt, as authorizes the maintenance of the action; They are therefore of opinion that there must be a new trial for error in the second instruction given to the jury at the request of the'defendant. What constitutes a disseizin is not now, perhaps, a question of very much doubt. Lord Mansfield said about a century ago, in Taylor v. Horde, 1 Burr., 110, that the precise definition of what constituted a disseizin was -not then to be found. “ The more we read, unless we are very careful to distinguish, the more we shall he confounded.” But Mr. Justice Story remarks, in Prescott v. Nevers, 4 Mason, 329, that “notwithstanding the language of Lord Mansfield, what constitutes a disseizin is, at least in this country, well settled. I remember to have heard a learned judge (the late Chief Justice Pausons) say, that Lord Mansfield had not gone to the bottom of this matter, and had puzzled himself unnecessarily. This [157] observation attracted my attention at an early period of my professional life, and I have made some researches to ascertain its accuracy. This is not, however, the proper occasion to investigate the subject at large. There is a distinction between disseizins in spite of the owner, and disseizins at his election. But the distinction often turns upon other principles than those which have been stated. The owner cannot elect to consider himself disseized, where the act is not of such a nature as in law aífords a presumption of a dissei-zin. But where an act is done, which is equivocal, and may be either a trespass or disseizin according to the intent, there the law will not permit the wrong doer to qualify his own wrong, and to explain it to be a mere trespass, unless the owner elects to so consider it.” “ To constitute an ouster of him who was seized,” says Chief Justice PARSONS, in Proprietors of Kennebeck Purchase v. Springer, 4 Mass., 418, “ the disseizor must have the actual, exclusive occupation of the land, claiming to hold it against him who was seized, or he must actually turn him out of possession.” Mr. Greenleaf, in a note to page 51 of the first volume of his Cruise on Real Property (note 8), sums up the authorities in a very satisfactory manner. He says that in the United States, as in England, two kinds of disseizin are recognized; namely, a disseizin in spite of the owner, also termed a disseizin in fact; and a disseizin by the election of the owner, also termed a disseizin by construction of law. The effect of the former is to give the disseizor an absolute title in fee, against all the world, if he is suffered to remain in undisturbed possession of the land during the time expressed in the statute of limitations. The latter is created by acts without actual force, and in themselves equivocal, and not necessarily amounting to an entire and immediate ouster of the freehold, but which the owner may, if he pleases, treat as usurpations of his freehold, for the sake of vindicating his [158] title by an action at law. Such is tbe case where a tenant for life or years makes a feoffment; or where a tenant at will makes a lease for years; or where a lease is made by a stranger, and the lessee enters under it, without force. In these and the like cases, as the act of entry is equivocal, and may be either a trespass or a disseizin according to the intent, the law will not permit the wrong doer to qualify his own wrong, and to explain it to be a mere trespass, unless the owner elects so to consider it. To constitute a disseizin of the former class, or in spite of the owner, the act must be an unequivocal act of ownership, open, known, exclusive, adverse, and uninterrupted. A disseizin of this kind may be made, not only by an actual and forcible turning the owner out of the possession, buf by entering under a conveyance from one who has no title; by any entry under claim or color of title; by occupying and cultivating it, under claim of title, though it be not the rightful title, such as a defective levy, or merely a claim of an exclusive right to possess. It must be adverse to the title of the true owner; that is, utterly inconsistent with his title, and with an express or tacit denial of it.
It seems very clear that this case discloses no ouster of the former kind, that is, in spite of the owner Eckstein’s occupation is not exclusive. McCourt is at liberty to occupy, and, it seems, does in fact occupy all of the eight inch strip of land except the small space actually taken up by the projecting stones of Eckstein’s foundation wall. And even that space he might have occupied had he so chosen at the time of building his own store. It is one of those wrongs which is remediable by act of the owner himself. He was so far in actual and peaceable possession, that he might have broken off and removed the projecting stones from Eckstein’s wall. See 2 Crabbe on Real Property, title, “ Redress by the act of the party,” §§ 2473-75.
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DixoN, C. J.
Whether the overreaching of the bottom of Eckstein’s foundation wall eight inches on to the land of Me Court, or, as some of the witnesses testify, the projection of some of the stones of the foundation eight inches over on to Me Court’s lot, constitutes such an ouster or disseizin of Me Court as will enable him to maintain ejectment, is a matter of which I have very great doubt. I am strongly inclined to think that it does not'. My brethren, however, are of a contrary opinion, and think that it is such an occupancy by Eckstein, and disturbance of the full and free use and enjoyment of McCourt, as authorizes the maintenance of the action; They are therefore of opinion that there must be a new trial for error in the second instruction given to the jury at the request of the'defendant. What constitutes a disseizin is not now, perhaps, a question of very much doubt. Lord Mansfield said about a century ago, in Taylor v. Horde, 1 Burr., 110, that the precise definition of what constituted a disseizin was -not then to be found. “ The more we read, unless we are very careful to distinguish, the more we shall he confounded.” But Mr. Justice Story remarks, in Prescott v. Nevers, 4 Mason, 329, that “notwithstanding the language of Lord Mansfield, what constitutes a disseizin is, at least in this country, well settled. I remember to have heard a learned judge (the late Chief Justice Pausons) say, that Lord Mansfield had not gone to the bottom of this matter, and had puzzled himself unnecessarily. This [157] observation attracted my attention at an early period of my professional life, and I have made some researches to ascertain its accuracy. This is not, however, the proper occasion to investigate the subject at large. There is a distinction between disseizins in spite of the owner, and disseizins at his election. But the distinction often turns upon other principles than those which have been stated. The owner cannot elect to consider himself disseized, where the act is not of such a nature as in law aífords a presumption of a dissei-zin. But where an act is done, which is equivocal, and may be either a trespass or disseizin according to the intent, there the law will not permit the wrong doer to qualify his own wrong, and to explain it to be a mere trespass, unless the owner elects to so consider it.” “ To constitute an ouster of him who was seized,” says Chief Justice PARSONS, in Proprietors of Kennebeck Purchase v. Springer, 4 Mass., 418, “ the disseizor must have the actual, exclusive occupation of the land, claiming to hold it against him who was seized, or he must actually turn him out of possession.” Mr. Greenleaf, in a note to page 51 of the first volume of his Cruise on Real Property (note 8), sums up the authorities in a very satisfactory manner. He says that in the United States, as in England, two kinds of disseizin are recognized; namely, a disseizin in spite of the owner, also termed a disseizin in fact; and a disseizin by the election of the owner, also termed a disseizin by construction of law. The effect of the former is to give the disseizor an absolute title in fee, against all the world, if he is suffered to remain in undisturbed possession of the land during the time expressed in the statute of limitations. The latter is created by acts without actual force, and in themselves equivocal, and not necessarily amounting to an entire and immediate ouster of the freehold, but which the owner may, if he pleases, treat as usurpations of his freehold, for the sake of vindicating his [158] title by an action at law. Such is tbe case where a tenant for life or years makes a feoffment; or where a tenant at will makes a lease for years; or where a lease is made by a stranger, and the lessee enters under it, without force. In these and the like cases, as the act of entry is equivocal, and may be either a trespass or a disseizin according to the intent, the law will not permit the wrong doer to qualify his own wrong, and to explain it to be a mere trespass, unless the owner elects so to consider it. To constitute a disseizin of the former class, or in spite of the owner, the act must be an unequivocal act of ownership, open, known, exclusive, adverse, and uninterrupted. A disseizin of this kind may be made, not only by an actual and forcible turning the owner out of the possession, buf by entering under a conveyance from one who has no title; by any entry under claim or color of title; by occupying and cultivating it, under claim of title, though it be not the rightful title, such as a defective levy, or merely a claim of an exclusive right to possess. It must be adverse to the title of the true owner; that is, utterly inconsistent with his title, and with an express or tacit denial of it.
It seems very clear that this case discloses no ouster of the former kind, that is, in spite of the owner Eckstein’s occupation is not exclusive. McCourt is at liberty to occupy, and, it seems, does in fact occupy all of the eight inch strip of land except the small space actually taken up by the projecting stones of Eckstein’s foundation wall. And even that space he might have occupied had he so chosen at the time of building his own store. It is one of those wrongs which is remediable by act of the owner himself. He was so far in actual and peaceable possession, that he might have broken off and removed the projecting stones from Eckstein’s wall. See 2 Crabbe on Real Property, title, “ Redress by the act of the party,” §§ 2473-75.
[159] But my brethren are of opinion that tbe encroachment of the wall is a disseizin by construction of law, or at the election of the owner. In this they may be, and probably are, quite right, but it is extremely difficult for me to say that any such casual and unintentional trespass upon the land of another without a claim of title, comes within the rule. I very much doubt whether it does, and whether Me Courts remedy is not by action of trespass. In some of the states it is held, as will be seen by Mr. Greenleaf’s note above referred to, that occupation by mistake and through misapprehension of the dividing lines, does not amount to a disseizin. In other states it is held that it does. In Aiken v. Benedict, 39 Barb., 400, it was decided that where one erects a building upon the line of his own premises, so that the eaves or gutters project over the land of his neighbor, this is not such an encroachment upon the possession of the .latter as will sustain an action of ejectment; and that an action for a nuisance is the .appropriate remedy in such case. On the contrary, it was decided in Sperry v. Frecking, 4 Duer, 452, that ejectment would lie for a portion of space occupied by the overhanging of a wall over land belonging to the plaintiff. And Stedman v. Smith, 92 Eng. Com. Law, 1, seems to be a very strong case in the same direction. It was an action of trespass by one tenant in common against another,'to maintain which an actual ouster must be shown. The plaintiff and defendant occupied adjacent plots of ground, divided by a wall of which they were the owners in common. There was a shed in defendant’s ground contiguous to the wall, the roof of which rested on the top of the wall across its whole width. Defendant took the coping stones off the top of the wall, heightened the wall, replaced the coping stones on the top, and built a wash-house contiguous to the wall, where the shed had stood, the roof of the wash-house occupying the whole width of the top of the [160] wall; and he let a stone into the wall with an inscription on it stating that the wall and the land on which it stood belonged to him. It was held that, on these facts, a jury might find an actual ouster by the defendant of the plaintiff from possession of the wall, which would constitute a trespass upon which the plaintiff might maintain an action against the defendant. It is to be observed, however, of this case, that there was a clear claim of title on the part of the defendant.
It appears from the record, that some evidence was given on the parts of Eckstein tending to show that at the time McCourt excavated and was laying the foundation for his store, Eckstein offered to remove the projecting stones from his own wall so as to give McCourt full possession of the eight inch space, but was prevented by McCourt. If this was so, and the jury should so find under .proper instructions, then it is the opinion of the whole court that such facts would constitute a valid defense as to the space so occupied. We have no doubt that a disseizor, especially one who has disseized the true owner by mistake or inadvertence, may relinquish or surrender the possession to the owner; and if he does so, or offers in good faith to do so, and is prevented by the act of the owner, then the owner cannot thereafter maintain ejectment against him. We have searched for no authorities in support of. this principle; but a principle so obviously in harmony with equity and justice when applied to the peculiar facts of the case before us, needs no such support.
By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.