delivered the opinion of the (old) Court:
Numerous errors have been assigned, which may be arranged under the following heads :
First. That which alleges err in overruling the defendant’s demurrer to the plaintiff’s replicad "o the defendant’s second plea;
Second. Those which refer the refusal to exclude the evidences of title offered by the pi;
Third. Those which complain of the refusal to give the instructions asked by the defendant;
Fourth. Those which insist that there is error in giving the instructions asked by the plaintiff.
As to the first exception on the pleadings, we perceive no error. The replication is full, explicit, and correct; no defect is seen either in the matter or the form.
The second ground is without reason to support it. The evidence was properly admitted, under the pleadings in the cause. Whether it conduced to sustain the issue, and was pertinent thereto, was the only enquiry, at the time it was offered, and not whether it was sufficient to entitle the plaintiff to recover.
On the third ground, in reference to the first instruction asked, it does not appear that the judge absolutely refused to give the instruction; nor that he did give it. The bill recites the fact, that the judge so far refused as to say, “ That if the jury believed, from the evidence, that Kinzie had a deed from Beaubien, and, at the time the trespass was committed, the defendant had no lease from Beaubien, or the plaintiff, he had a right to enter, unless the defendant could show a better title in himself.” This, although an evasion of the instruction asked by the defendant, could not have prejudiced him; because the Court might well have refused to instruct the jury as asked, “ That if they, the jury, should be of opinion, from the evidence, that the plaintiff, with his hands and carts of lumber, entered on and within the enclosed premises of the defendant, without his consent so to do, that then the plaintiff and his hands were trespassers; and that the defendant used such force and means only as was necessary to ensure their safe removal out of his enclosure, doing no unnecessary damage to either in removing them out, then the law is for the defendant.” This instruction presumes the existence of a fact not appearing in the cause; that is, that it had appeared in evidence that the premises in controversy belonged to the defendant. Now, for aught that appears in the case, no evidence whatever showed that the defendant had either title or possession, actual or constructive, of the locus in quo in question.
The second instruction asked by the defendant was, “ That the plaintiff could not recover, in the present form of action, for the trespasses named in the first and second counts of the declaration, unless the jury should be satisfied, from the evidence, that the plaintiff, at the time, was in the actual and exclusive possession or occupancy of the premises;” which instruction was refused, by a qualified instruction, couched in these terms: “ That if they believed, from the evidence, that the plaintiff had the best title, by deed from the rightful owner, that then it was not necessary to be in the actual possession, but he had a right to enter, unless barred by a lease to defendant.”
Here again is an evasion of the instruction asked, but not to the prejudice of the defendant; because the judge might well have refused the instruction in the terms asked. Actual possession is not necessary to maintain an action of trespass, where the party has the title to the soil; the title drawing to it the possession; nor where there is not an actual exclusive possession by another of the whole. Hence there was no error in the refusal, nor in the instruction as given.
The fourth ground of exception consists in the instructions given at the instance of the plaintiff, and excepted to by the defendant. The instructions were, “ That if the jury believed, from the evidence, that the defendant acted by the order of the Government, that he might prove that, to their satisfaction, by an order from the proper head of the department; and if they further believe the defendant had not shown excuse and right for taking the property, as mentioned in that plea, then the law was for the plaintiff.” Here, also, the instructions were evasive of those asked by the plaintiff; but still we perceive nothing wrong in them.
. They are general, embrace propositions self evidently right, applied to a proper state of facts; but from the ambiguity in reference to the facts, which may have existed, and called them forth, and the obscurity which marks the manner in which they are stated, it is not possible to perceive that the defendant has sustained, or might have sustained, prejudice therefrom.
So far as an opinion can be gathered from the case, under the third count in the declaration, it is apparent that the plaintiff was entitled to recover; and in reference to the other portions of the cause, no sufficient reason is perceived for interfering with the judgment.
The judgment is affirmed with costs.
Judgment affirmed.