Uttendorffer v. Saegers

Opinion

By the Court:

The action is trespass quare clausum. Its gravamen is the *498alleged possession of the plaintiff at the time of the entry of the defendant. In this view the offer of the defendant to show that a tenant of the plaintiff, and not the plaintiff himself, was in the actual possession at the time of the alleged trespass, should have been allowed. The record is somewhat confused upon the point; it appearing in the first instance that the offer was denied by the court upon objection made by the plaintiff, but at a subsequent stage of the case the evidence was, at least to a considerable extent, put by the defendant before the jury. But however this may be, the court afterwards refused an instruction asked by the defendant, to the effect that the plaintiff could not recover, if the land was at the time of the trespass complained of in the actual possession of others, who excluded the plaintiff therefrom. However, even if it could be considered as an action brought by a reversioner for injury done to the freehold, the duration of the term of the tenant in possession would be important evidence as affecting the measure of the damages to be recovered.

Judgment and order denying a new trial reversed, and cause remanded.