Opinion by
Greene, J.This was an action on the case, commenced before a justice of the-peace, for removing a quantity of rails, and exposing the crops of the plaintiff. Judgment having been rendered against the defendants, the cause was appealed to the district court, where, upon their motion, a judgment of nonsuit was rendered, upon the ground that the action should have been trespass instead of case.
One of the errors assigned is,'that the court nonsuited the. plaintiff against his consent. In support of this position, authorities are cited to show that a court cannot compel a plaintiff to submit to a nonsuit after the evidence has gone to the jury. This rule appears to be'sanctioned by the courts in some of the states, and they authorize a plaintiff, if he chooses, to insist upon a verdict-. But a different' rule has been recognized by this court, and the practice of the New *497York courts adopted in this particular, so far as it can be done without encroaching upon the province of the jury.
The doctrine established by the courts of New York is, that if, in the opinion of the court, the testimony offered does not support the action, or is so insufficient as to justify an arrest of judgment, it has a right'to nonsuit the plaintiff. 12 John. 299; 13 ib. 335; 1 Wend. 376. There appears to be good reason for this rule. If the evidence would not authorize a verdict for the plaintiff; or if so found the court would set it aside as contrary to evidence; or if the pleadings are so defective as to justify an arresf of judgment, why allow the case to go to a jury for their verdict ? But in non-suiting a plaintiff, great caution should be exercised by the courts to guard against an interference with the province of the jury. It should not be done if there is room for doubt as to sufficiency of evidence. The plaintiff, by suffering a nonsuit, retains the advantage of bringing another action, and this he can doubtless do when the nonsuit is ordered by the court. 14 John. 340; 1 Paine & Duer’s Pract. 541; 2 Tidds’ Pract. 917; 2 Dunlap’s Pract. 652-3.
In the case of Perley v. Little, 3 Greenl. 97, it is laid down, that when the evidence offered by the plaintiff, and not controverted by the defendant, is deemed insufficient to maintain the action, the court may order a nonsuit; and that this is no infringement of the right of trial by jury.
As there appears to be good sense and great convenience in this practice, we believe it should prevail in our courts.
It is also urged, that the court erred in deciding that tres- ■ pass and not case was the proper remedy. The bill of exceptions shows that the plaintiff had title to the land, at the time the injury was committed, by purchase from the government. This purchase placed him at least in constructive possession. Such a possession is sufficient to maintain the action of trespass. 3 McCord, 422 ; 7 Conn. 233. In the case of Poole v. Mitchell, 1 Hill, S. C. 404,, it is held, that when the plaintiff has the right of property,’and also the right of immediate possession, he may maintain trespass, although the *498n ctual possession is in another. A similar doctrine is asserted in 1 Stew. 229; 1 Wend. 466 ; 1 Verm. 485.
The position assumed, that the plaintiff was not in position to maintain the action of trespass, we think is not tenable, nor sustained by the facts set forth in the bill of exceptions. The injury alleged was direct, and not consequential. The act complained of working an immediate, injury upon the plaintiffs estate, trespass and not case must be regarded as the proper remedy, and the court therefore did not err in ordering a nonsuit.
Judgment affirmed.