Wilkinson v. Connell

Citations

• 158 Pa. 126
• 27 A. 870
• 1893 Pa. LEXIS 1554

Syllabus

<p>Trespass quare clausum fregit — Possession.</p> <p>An action of trespass quare clausum fregit cannot be sustained unless the plaintiff has 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 constrnctive 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>Plaintiff and defendant owned and occupied adjoining lots in a borough. Plaintiff bought from defendant a strip eight feet wide to add to his own* lot. Defendant ran off this strip, delivered possession to plaintiff, and on the line so run began the erection of a building. -When the building was up about one story, plaintiff caused the line to be run, and discovered, as he alleged, that the rear end of defendant’s building was three and one half inches over the true line. This was denied by defendant. Held, that if defendant did not run the line in the right place, or turn over to plaintiff all that he was entitled to, plaintiff, had never been in the actual possession of the land so withheld from him, and the action could not be sustained.</p>