Clark v. Hill , 1 Del. 335 ( 1834 )

By the court.

It appears from the evidence in this case that Mr. Clark is in possession of a farm, lying chiefly, if not altogether, on the south side of a certain branch called the Green Spring branch, and that Mrs. Hill is the owner of a farm on the north side of the same branch. To a small strip of woodland intervening, but also on the north side, both parties claim title; but it does not appear that the plff. was ever in the actual possession of this woodland, or exercised any act of ownership over it, but on one occasion, when his tenant entered by his orders and cut some five or six cords of wood, apparently with the sole purpose of placing himself in a condition to treat the deft, as a trespasser. We are of opinion that this one act did not give him such a possession as will enable him to maintain trespass. The deft, was in possession; had exercised frequent and unequivocal acts of occupancy and ownership; her possession could not be divested in this manner, even though the plff. had the legal title. Such an act would not of itself establish even a joint occupancy of the plff. with the deft. We agree to and repeat the decision in Hunter and Lank; but this is not the case of a mixed ownership or common possession. It is, as the proof now stands, the case of the legal title, unaccompanied by any actual possession on the one side, and an exclusive occupancy on the other. The plff. in such a case cannot maintain trespass against the party in possession, but must resort to his action of ejectment.

We therefore order a nonsuit.