The opinion of the court was delivered by
Hebard, J.The plaintiff, in argument, assumes the ground that the defendant has no legal interest in the premises, — and that he, having the legal title and the right to possession, in contemplation of law has the possession; — and this, in argument, results from the assumed fact that the relationship of landlord and tenant existed between the plaintiff and defendant. It is a general principle of law that the gist of the action of trespass qu. clans, fregit is the injury to the possession; and that, unless the plaintiff, at the time the injury was committed, was in the actual possession of the premises, the action cannot be supported. Stuyvesant v. Tompkins, 9 Johns. 61. Campbell v. Arnold, 1 Johns. 511. Wheeler v. Hotchkiss, 10 Conn. 225. Tobey v. Reed, 9 Conn. 216. 1 Chit. Pl. 175. There is, however, a qualification that attaches to this general principle of law. The owner of land, in the possession of a tenant at will, may maintain this action for a permanent injury to the freehold ; but this is upon the ground that the possession reverts to the owner, upon the commission of the tortious act which determines the lease.
Whether Yale can be regarded as a tenant, in any sense of the term, is not very clear. He went into possession of the land under a contract, of purchase, and paid a part of the purchase money, and claimed the land as his own. No rent was reserved, and none was due; — and in no way, expressly or impliedly, did he acknowledge any one to be his landlord. He entered as unconditionally, and as untrammeled by terms, as if the deed had accompanied the possession. Then there was no contract between the defendant and Bly in the first instance, which would create a tenancy ; and if one was created, it was by operation of law.
*261But whether he was, in any view of the case, a tenant of Bly, we think he cannot be regarded as the tenant of Ripley. The case of Wheeler v. Hotchkiss, 10 Conn. 225, is in point. The present case, in one respect, is different from the cases which have been cited. The plaintiff never was in possession of the premises, and he, therefore, only stands in the character of a bargainee, and therefore the possession of Yale, if he had been the tenant at will of Bly, would not be the possession of the plaintiff, so as to enable him to maintain this action, — and more especially as the contract was by parol.
We are clearly of opinion that the judgment of the county court was correct, and must be affirmed.