I concur in the reversal of the judgment in this case. The plaintiff was bound to prove not only that it had possession of this property, but that it had the right to possession as against the defendants, and unless it had such right there clearly would be no justification for this judgment. The right of possession in this case could only arise from the title; or, if no title were shown, the plaintiff might, possibly, maintain this action if it were made to appear that it had had an undisputed possession of these premises and the trespass . by the defendants worked an irreparable damage. (Corning v. Troy Iron & Nail Factory, 40 N. Y. 191.) Ordinarily, where one claims that his land has been trespassed upon, he should bring his action at law to recover his damages for the trespass, and he is not warranted in bringing' an action in equity unless some necessity is shown for granting equitable relief, which is not the case here. It would have been perfectly proper, in my judgment, to dismiss the complaint, for the reason that the acts of the defendants were not in any event anything but a trespass, and the plaintiff could ■obtain all the relief he was entitled to by an action at law for damages, and I think that this action in equity should be determined adversely to the plaintiff upon that ground.
But if it should be thought that the acts of the defendants were of such a nature as to work irreparable damage, and thereby entitle the plaintiff to an injunction to restrain them, it still could have mo relief in this action unless it showed a right of possession superior to that claimed by the defendants.
In this case the plaintiff depends upon its title, and it claims to derive the right of possession solely from the fact that it has title to the premises. There was an absolute failure, in my judgment, of ■any proof that the plaintiff had title as against the defendants. When -one claims to be the owner of land, and seeks to establish that fact, there are three ways to prove his title. If there is a conceded common source of title, the plaintiff may show that he succeeded to the title from the common source. If there is no common source of title, and no privity between the parties as is the case here, then the plaintiff can only prove his title by deriving it. from an ■original source of the title or by showing that some ancestor or .grantor was in possession, and deriving his title from that per-*312son. In this case the plaintiff, to establish its title, provedvthe will of one James Ferris, which was admitted to probate on the 14th of April, 1747, and which devised lands said to include the premises in dispute. But there was no proof that James Ferris was-ever in possession of the premises, nor was there any proof that any person was in possession of them by a title derived from James Ferris or by any other right until 1859 or 1860. To that possession reference will be made shortly. The defendant, on the contrary,, sought.to derive his title from one John Ferris, who conveyed to Robert Heaton, in 1792, certain premises which are said to include-the lands in question. ■ There was described as conveyed in this deed an equal undivided onedialf of premises, of which the lot in question is said to be a part. The defendant claims to be the owner of this undivided half by title from Robert Heaton, the grantee' of Ferris. ' But there is no proof of possession until 1858 or 1859, at. which time evidence of possession is given by both parties. That, evidence amounts to this: That one Laytin occupied the land which had originally been conveyed to Heaton, and ■ one Van Antwerp-occupied the land which is said to have been devised by James Ferris. It appears that Laytin and Van Antwerp were in possession of these premises from time to time, each claiming the right to be there. So far as appears, that possession continued down to the time when the -plaintiff took possession of the premises and. after-wards, and it is upon that right that the plaintiff bases its claim -to-have an injunction to -restrain the defendants from their occupation of these lands. The evidence is entirely insufficient to show.' any adverse possession on the part of the plaintiff, or to show that any of the plaintiff’s grantors were in exclusive possession of these premises. ■
When we first find any one in possession we find Laytin claiming-the right to be there and Van Antwerp claiming the same right, and each party holding possession as he was desirous or his mecessi- . ties seemed to require. I am quite clear that that state of facts did not warrant the plaintiff in claiming it either had or was entitled to-exclusive possession of these premises so as to authorize the court to-restrain the other occupation of these lands by this defendants.
I think the judgment should be reversed and that the plaintiff should not be allowed- to maintain this action, but should be. put to-*313an action in ejectment or trespass to establish its right to the- possession of the premises before calling upon the court to exercise its equitable jurisdiction in the case.
Hatch, J., concurred.