The opinion of the Court was drawn up by
Shepeey. J.— It appears, that William West, one of the defendants, entered into possession of the lot of land, on which the trespass is alleged to have been committed, and disseized the owner in the year 1828 ; and that he continued that pos*452session until after the plaintiff recovered a judgment against him in an action of 'entry in the month of September, 1841. The plaintiff made a formal entry upon the premises before the'commencement of that suit. While it was pending this action of trespass quare clausum was brought against West and the other'defendant,-who .was acting under him, to recover damages for cutting and carrying away .trees standing on the premises. The trespass is alleged to have been committed between the third day of Janu'ary and the fifteenth day'of April, 1841. • '
The owner of the land must have had possession, actual' or Constructive, to enáble him to maintain this action. The disr seisee cannot maintain such an action .against his disseisor until after he has regained the possession ; when he may have his action of trespass for the mesne profits.
The plaintiff, at the time of the commencement of this suit, had not been ip the actual possession of the premises for more than a dozen years; and during that time they had been in the exclusive possession of West. A mere formal entry, which did not disturb that possession, made two years before this suit was commenced, was not equivalent to that actual or constructive possession required by law to enable the plaintiff to maintain-'it.
It is contended, that it may be maintained by virtue of the provision of the former statute, c, 35, § 4, which subjected the person in possession and others to treble damages for waste done by cutting wood and timber trees on the premises after service of the writ to recover possession. If this could be considered as such an action, as is authorized by that statute, it could not be maintained by .virtue of it, for it does not .authorize the plaintiff to commence such an.action, until after “ he has recovered his title and possession of such estate sued for.”'
It appears also, that West, on the trial of the action of entry, claimed to have held the premises for more than six years by virtue of a possession and improvement; and that he filed a pjaim to have the increased value by virtue of such improve^ *453ment assessed, -and that he prevailed in that claim. By the statutes'the intention is clearly perceived, that one entitled to his improvements should not bo deprived of the benefit of them by any course, which the owner of the land may pursue-; for if he enter and- withhold the possession from the tenant, he is made liable to pay him for their value. If the owner might by a mere formal entry maintain trespass quare clausum against one so entitled, he could, by commencing a new suit for each act of the tenant upon the land, compel him to abandon the premises without affording him an opportunity to have the value of his improvements assessed in a real action, and without subjecting himself to an action for their value by withholding the possession after an actual entry ; and thus destroy those rights of the tenant, which were designed to be protected by the statutes. Plaintiff' nonsuit.