Tustin v. Sammons

Citations

• 23 Pa. Super. 175
• 1902 Pa. Super. LEXIS 17

Syllabus

<p>Trespass — Possession—Action—Evidence.</p> <p>To enable a plaintiff to maintain an action of trespass quare clausum fregit he must have the possession, actual or constructive, of the close which he alleges has been invaded. If the land entered by the trespasser is unimproved, possession will be presumed to accompany the title, and this constructive possession will support an action. If the land is improved, that fact shows that it is in the actual possession of some one. In such case the plaintiff cannot rest on his title but must show his possession.</p> <p>Where in an action of trespass quare clausum fregit it appears from the uncontradicted testimony that plaintiffs removed a fence, invaded the possession of the defendant against the protest of the defendant, and re-erected the fence within the limits of such possession, the court can say as a matter of law that the plaintiffs are not entitled to recover.</p> <p>Where in an action of trespass quare clausum fregit the plaintiff sets forth in his statement that the trespass consisted in destroying a certain fence, and he has served a notice to claim for a continuing trespass to the date of trial, he cannot at the trial show an independent trespass committed by the defendant in building a new fence within the line of plaintiff’s possession.</p> <p>A notice under the act of May 2, 1876, enables the plaintiff to recover damages down to the date of trial in ease of a trespass of a continuing nature, but cannot be used to bring in separate, subsequent causes of action arising between the issuing of the writ and the trial, even though they be trespasses of the same kind.</p>