The bill of exceptions in this case seems to show, that the question of title to the estate, upon which the alleged trespass was committed, was at issue between the parties, and formed a material part of the plaintiffs’ case, from which they were precluded by the ruling of the court. This being so, it follows, as a necessary consequence, that the court erred in withdrawing the testimony on this point from the jury. The plaintiffs proved a clear and unequivocal admission by the defendant in writing, made under circumstances which gave it great force and significance, of facts material and relevant to this part of the case; and upon the most familiar principles, the evidence, upon which it was the exclusive province of the jury to pass, should have been submitted to their consideration. Indeed, we are at a loss to know what better or more conclusive proof of title could have been offered by the plaintiffs, than the direct admission of the defendant of the fact, made in writing, upon the settlement of an action brought to establish the title in the plaintiffs as against the defendant, entirely unexplained and uncontrolled, as it seems to have been, by any other evidence offered at the trial.
It was urged at the argument, by the counsel for the defendant, that as the right of the plaintiffs to recover on the ground of possession, was submitted to the jury, and a verdict on that point found for the defendant, the ruling of the court, as to the evidence of title, became immaterial. It is undoubtedly true, that the gist of the action of trespass is the injury done to the plaintiffs’ possession. But it is equally true that, even in trespass quare clausum, the possession may be, in a certain sense, constructive as well as actual, and the title to the premises may have a material bearing on the question of possession. If, for instance, the premises rightfully belonged to the plaintiffs, but were in the actual occupation of no one. or were occupied by a tenant at will, or at sufferance, under th^-m *467then they might maintain trespass, as for an injury to their own possession, as against a stranger, and the proof would naintain the averment. 2 Greenl. Ev. § 614; 1 Chit. Pl. (6th Am. ed.) 177, note; Van Brunt v. Schenck, 11 Johns. 885; Starr v. Jackson, 11 Mass. 519.
The case, as stated in the bill of exceptions, does not show the facts sufficiently to enable us to judge how far the question of title was material in its bearing on the point submitted to the jury, and we are therefore compelled to send the case to a new trial, because the plaintiffs were shut out by the ruling of the court from a part of their case, which might have ver) materially affected the result. Exceptions sustained.