In order to maintain trespass quare clausum fregit, there must have been either an actual possession by the plaintiff at the time when the trespass was committed, either by himself or by his authorized representative, or a constructive possession20 with the lands unoccupied and no adverse possession.21 In the case of Galt vs. The Chicago and Northwestern Railway Company,22 this question was discussed as follows: 'The action of trespass quare clausum fregit, and the principles which govern it, are well established and generally understood. Possession by the plaintiff, either actual or constructive, is indispensable. The foundation of the right to bring the action is the invasion or disturbance of the plaintiff's possession. It matters not that one be not the owner of the paramount or other paper title, for, as against a stranger or wrongdoer having no right of possession in himself or authority from the lawful owner, mere proof of possession by the plaintiff will suffice to support the action. (2 Greenleaf on Evidence, Sec. 618). On Cook vs. Foster, 2 Gilm, 652, this court, in defining the action, among other things said: 'The basis of the action is an injury to the possession. No person is entitled to recover damages for the injury but the one who has the actual claim or constructive possession of the land. A party having the actual and lawful possession may maintain the action. The real owner, where there is no adverse possession, can maintain the action on the principle that the possession in such case follows the ownership. Where there is an adverse possession the owner is not allowed to bring this kind of action.' The elementary principles here stated have found expression in very many subsequent cases in this court, among which see Halligan vs. Chicago and Rock Island Railroad Co., 15 111., 558; Dean vs. Comstock, 32 id., 173; Winkler vs. Meister, 41 id., 349; Barber vs. School Trustees, 51 id., 396; McCormick vs. Husse, 66 id., 315; Ft. Dearborn Lodge vs. Klein, 115 id., 177. According to Blackstone, possession was, in the eye of the law, esteemed sacred and inviolable, whether the land be set apart and inclosed by a material and visible boundary, as a fence, or by an ideal, invisible one, existing only in contemplation of law. In either case, every unauthorized entry upon the soil of another, or unwarrantable invasion of his peaceable possession, with force, however slight, was a breaking of the close, from which the common law regarded some damage to necessarily ensue, and whatever loss or injury the plaintiff suffered, special or otherwise, his damages by reason thereof were recoverable under this form of action. (3 Blackstone's Com., 209). It is unnecessary to dwell upon this branch of the inquiry. That the action must be brought by the party whose possession has been disturbed or invaded, is too rudimental and familiar to warrant further discussion. "

14 Beckman vs. Kreaner, 43 111., 447, 92 Am. Dec, 146; Waters vs. Lilley, 4 Pick. (Mass.), 145, 16 Am. Dec., 333; Shipman vs. Crowe Lands, 6 Hawaiian, 351. Damages cannot be recovered where fishery is worthless. Tinicum Fishing Co. vs. Carter, 90 Pa., St. 85, 35 Am. Rep., 652. Landing fish on another's land adjoining navigable water is actionable. Bickel vs. Polk, 5 Harr. (Del.), 325.

15 Decker vs. Fisher, 4 Barb. (N. Y.),592. Where the owner of the oyster beds does not own the land underneath, this action for the taking of the oysters will be one of de bonis asportatis, instead of quare clausum fregit.

16 Holder vs. Coates, M. & M., 112,

22 E. C. L., 264.

17 Stoner vs. Hunsicker, 47 Pa. St.;

514; Drake vs. Crider, 107 Pa. St., 210.

18 Gibson vs. Wright, Nay, 108;

Kellogg vs. Dickinson, 18 Vt., 266. The private ownership of pews is now generally obsolete.

19 Religious Congregational Society vs. Baker, 15 Vt., 119, 40 Am. Dec, 668; Walker vs. Faw-cett, 7 Ired L. (29 N. C), 44.

20 American and English Ency. of Law, Vol. XXVIII, p. 573; Henrichs vs. Ferrell, 65 Iowa, 28.

21 Hampton vs. Massey, 53 Mo.

App., 501; Fitch vs. New York, New Haven and Hartford R. Co., 59 Conn., 414. If the premises are actually occupied, the action must be brought by the party in possession; if they are vacant and unoccupied the party having the legal right has the right of possession and must bring the action. Dean vs. Comstock 32 111., 173.

22 157 111., p. 125,132-3.

Bare actual possession is sufficient against a mere tort-feasor;23 but if the person in possession holds less than a freehold he can recover only for the injury to his temporary possession.24 Neither a lessor, while his tenant is in possession,25 nor a remainder-man,26 can maintain trespass quare clausum fregit; 27 their only remedy is by action on the case. The action of trespass quare clausum fregit cannot be maintained against a trespassor wrongfully in possession.28

A person having the equitable title, with the right to call for the legal title may maintain an action for trespass.29 The right of action for a trespass is not assignable, and does not pass with a conveyance of land.30 That the cause of action for the trespass is not transferable with the land and does not inure to the benefit of the grantee, even if assigned in writing, has been held in a number of well-considered cases. In Chicago and Alton Railroad Co. vs. Maher,31 an action of trespass was brought by the grantee to recover damages to certain dock property. The injury, occasioned by the erection of a bridge pier in the river, was committed while the property was owned by the grantor, and it was contended that the injury was a continuing one, for which the grantee might recover damages accruing since she became owner. On the other hand, it was insisted that the injury was permanent, depreciating the price of the land, and that for all damages, past and future, the grantor may have sued and recovered, - that the trespass was on the grantor's land, and the damages, if any, were sustained by him, and that he could not, and did not, assign his cause of action to the grantee by the conveyance of the land. In their decision the court said: "We are not aware that any court has ever held that a mere trespass to land, giving a right of action, can be assigned by an instrument in writing for the purpose, or by conveying the land. Such a right of action is not appurtenant to the land, nor does it, like a covenant for title, inhere to or run with the land. It, when accrued, is a personal right, and is not transferable. It then follows that appellee did not acquire the right of action which accrued to her husband by the construction of this protection to the bridge. The action for that wrong was vested in him, and she can recover nothing on account of the placing of the obstruction in front of the dock."

23 Bass vs. West, 110 Ga., 698;

Beddens vs. Clark, 76 111., 388; Clavey vs. Houdlette, 39 Me., 451; First Parish vs. Smith, 14 Pick. (Mass.), 297.

24 Frisbee vs. Marshall, 122 N. C,

760. 25 Bartlett vs. Perkins, 13 Me.. 87; H. Holmes vs. Seely, 19 Wend. (N. Y.), 507. The contrary rule is held in Missouri. See Cramer vs. Groseclose, 53 Mo. App., 648; and Parker vs.

Schackelford, 71 Mo., 68. 26 Lawry vs. Lawry, 88 Me., 482.

27 Remainderman and other terms used in this section will be explained under Real Property, Volume VI, Subject 17.

28 Wilsons vs. Biff, 1 Dana. (Ky.),

7, 25 Am. Dec, 118.

29 Russell vs. Meyer, 7 N. Dak., 335.

30 Allen vs. Macon, etc., R. Co.,

107 Ga., 838; Chicago, etc., R. Co. vs. Maher, 91 111., 316.

A tenant in common may maintain an action against an outsider;32 but generally not against a co-tenant. Mortgagees,33 trustees34 and irrevocable licensees,35 may all sue for trespass. A tenant even on a parol lease, may recover for injury to his possession.36

31 91 111., 312.