The opinion of the Court, after a continuance, was' prepared by
Shepley J.The plaintiff, at the time the trespass was committed, was in the actual possession of die premises, although he bad before that time conveyed the same to a third person, who has never entered into possession.
Possession is sufficient to maintain this action. And any possession is a legal possession against a wrongdoer. 1 East, 244, Graham v. Peat. The objection in this case is, that the injury is to the freehold, and that the owner only can maintain the action for such an injury. But the cases cited and relied upon, tend only to shew, that the owner may have his action for his injury, aldrough there be a tenant in possession; not that die tenant may not also have his action for his injury. The case in the Year Book, 19 Hen. 6, 45, decides, that a tenant at will may have an action for injury to the soil, and the landlord also for his injury. The same rule applies to the cutting of trees. If trees are cut upon die land of tenant at will, he may have an action of trespass. Roll. Ab. Trespass, n. 4; Com. Dig. Trespass, B, 2. The principle is quite explicitly stated in note 2, Co. Lit. 57, a. “If a stranger cuts trees, the tenant at will shall have an action, as shall also the lessor, regard being had to their several losses.”
Whether the owner can in this case, maintain an action of tres*441pass, it is not now necessary to decide. It has been decided in Massachusetts, that he can, 11 Mass. R. 519, Starr v. Jackson; and in New York that he cannot. 1 Johns. R. 511, Campbell v. Arnold.
No question is raiáed in the case respecting the amount of damages, and the plaintiff being entitled to maintain the action, the defendants, according to the agreement, are to be defaulted.