Upon the facts found by the referee, there can be very little doubt as to the correctness of the judgment. The plaintiffs insist that, under the evidence, Wild never could have held the farm adversely; that he was estopped from any such holding; that he was there as tenant at will or at sufferance of the plaintiffs; and then they insist that the evidence showed no adverse possession. Neither of these questions is here for review, as neither seems to have been made before the referee. No objection seems to have been taken to evidence showing or tending to show an adverse possession; no point presented to the referee that the evidence given was legally insufficient to prove it.
The weight of the evidence cannot be here examined on an allegation that the referee erred as to a finding of fact. That was exclusively for the Supreme Court. The simple question here is, can this action be maintained against one who has purchased the hay of a party in possession of a farm, claiming it as his own against the world, and holding it adversely — the action being brought before the plaintiffs have recovered possession of the farm? I think it is well settled that the action cannot be sustained.
For the first act of trespass in entering upon the land, the owner may maintain an action, but not for after acts until he first regain possession. This applies, I think, under the authorities, to all cases of ouster of the owner. (Holmes v.Seely, 19 Wend., 507, 509, and cases cited; Dewey v.Osborn, 4 Cow., 329, 338; Demott v. Hagerman, 8 id., 220.)
The possession here alluded to is something more than a mere act of trespass. It must be so long continued, and so far yielded to, as to constitute a possession to the exclusion of others — an occupancy as distinguished from a mere act of trespass.
The plaintiffs insist that the possession of the defendant in *Page 366 the case at bar was a tenancy at will or at sufferance of the plaintiffs.
If that were so, it does not necessarily follow that this action would lie. Suppose the tenant at will remains in possession for six months or for a year, gets in and gathers the crops, for what is he liable to the owner? For the use and occupation of the premises, not for the value of the crops; nor do the crops of grain or grass, as a general rule, belong to the owner of the land under such circumstances. But if the tenant commit waste on the land — if he cut down trees without authority, and contrary to his agreement as tenant, either express or implied, remove them from the premises and sell them, trover will lie against him by the owner. (The People v.Alberty, 11 Wend., 160.) And if the trees, after being cut, lie awhile, and are then removed and sold, trespass will lie. A nice distinction. (Schermerhorn v. Buell, 4 Denio, 422.)
Whether a vendor remaining in possession after having sold and delivered a deed of the premises, can hold adversely to his vendor, it is not necessary to decide. But there are authorities looking in that direction. (Jackson v. Benton, 1 Wend., 341;Zeller v. Eckert, 4 How. U.S., 289.)
Judgment affirmed. *Page 367