The action was continued nisi, and the opinion of the Court was afterwards drawn up by
Weston C. J.— The plaintiff had a right to place his net where lie did ; and the defendants in cutting or casting it off and turning it adrift, were guilty of a trespass. But it is contended, that the plaintiff cannot maintain trespass quare clausum, for the injury. The objection is a technical one; and, famishing no de-fence to the merits of the case, we have not been disposed to regard it with favor. But upon consideration, we are of opinion that it is sustained by authority. Littleton, in his tenures, <§> 322, says, if two have an estate in common for a term of years, and the one put the other out of possession, the injured party may maintain ejectment. But in the next section he states, that although ejectment will lie, trespass quare clausum, will not, for one tenant in common against another. Colee, in commenting upon this section, says, if there be two tenants in common of land, and one take up and carry away the mete stones, the other may maintain trespass, vi ct armis, for the injury. And if there bo two tenants in common of a folding, and one of them disturb the other in erecting hurdles, he may maintain the same action for the disturbance. But he does not say that trespass quare clausum, can be brought in either case. Coke Lit. 200 b.
Whenever a party has an exclusive right to the possession, this action may be maintained, although he has not an absolute right to the soil, or the whole property therein. And it may be supported for a trespass in a portion of a common field, after an allotment in severalty to the plaintiff. Welden v. Bridgewater, Cro. Eliz. 421.
The opinion of Wilde J. was against the action in Keay v. Goodwin, 16 Mass. R. 1, where one tenant in common disturbs the temporary, but rightful possession of another. And in our judgment, this opinion is in accordance with the principles of law.
It is submitted to the Court, whether if the plaintiff’s count, de bonis asportaiis, should be restored, he would be entitled to judgment upon that count only. If the action cannot be main*420tained upon the count as it stands, it ceases to be an action of trespass quare clausum, which alone justified the demurrer in the Common Pleas, under which it was brought into this Court. Stat. of 1829, ch. 444. To decide otherwise would have the effect to justify an evasion of the statute, by the insertion of a formal count of this sort, in cases where it is not warranted by law. Snow et al. v. Hall, 3 Greenl. 94. As it is brought before us, "we cannot sustain it, as an action, de honis asportatis.