delivered the opinion of the court.
This is an action of trespass, in which the plaintiif claims remuneration for damages, alleged to have been by him sustained in consequence of the defendant having broken the enclosures of the former by removing the fences on his land, &c. The defendant, in his answer, pleads the general issue, and sets up title to the land on which the trespass is alleged to have been committed, &c. The case was submitted to a jury in the court below, who found a verdict for the plaintiif, and judgment being thereon rendered, the defendant appealed.
The evidence of the cause shows, that the parties were separate owners of two tracts of land adjoining a public road, and that it was found- convenient to change the direction of this road, which change had the effect of severing a small portion of the defendant’s land from his tract, and leaving it in a situation to be more advantageously occupied by the , . , ° , . . r , plaintiff. An agreement was entered into between these proprietors, by which it was stipulated that the defendant sold to the plaintiff that portion of land which fell by the 1 /.it course of the new road on the innit of the tract of the latter, The consideration as the price of the property sold, was one hundred dollars, and the labor and expense of making the new road, which the vendee undertook to make at his own separate charge and expense. A principal allegation in the defence is, that this being a condition precedent, and the plaintiff never having complied with his promise and undertaking, he acquired no title to the premises in dispute. The testimony, in relation to the period or length of time during which the plaintiff was in actual possession of the land sold to him on the conditions above stated, shows that he began *156to use it as Ms own, and continued thus to possess it more than one year before the defendant entered, committed the trespass complained of, and took the property from the plaintiff.
Where a person has a right of possession and suffers his adversary to remain in peaceable possession more than a year, he forfeits his right lo a possessory action, and has no remedy left him hut the petitory. The right of possession and actual possession authorise the possessor to bring- an action of trespass, and it is the province of the jury to assess the damages.Under these circumstances, we do not believe the case properly presents any question of title. So far from the appellant having any right, forcibly to enter on, and seize the land in dispute, be had, by the lapse of time during which the appellee was suffered to remain in peaceable possession, forfeited bis right to a possessory action, and had no remedy left but the petitory. The right of possession acquired by the plaintiff and actual possession under the contract, authorise the present suit, which is simply an action of trespass. It was the province of the jury to assess his damages, which appear to us not to be excessive.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; reserving to the defendant his right, if any he have, to sue for a rescission of the contract of sale, &c.