McMillan v. Hafley , 2 N.C. 89 ( 1815 )

Cameron, J.

delivered the judgment of the court.

The plaintiff in an action of trespass, quare clausum fregit, must shew that at the time of the commission of the trespass, he had possession of the premises, either actually, or constructively.

It is admttted in the statement of the case, that the plaintiff had not the actual possession of the land in question.

Constructive possession can only exist where the party claiming has title to the land, and there is no one in actual possession, claiming under an adverse title; and as the plaintiff had no title in law, at the time of the commission of the trespass, he cannot be considered as having a constructive possession—consequently, he cannot recover in this action.

The opinion of the court being in favor of the defendant, on the second point stated in the case, it is unnecessary to decide the first point.

Let the verdict for the plaintiff be set aside and a nonsuit entered.