Odger's English Common Law

448 TRESPASS TO LAND.
actual possession or never been seised of the land, unless he has obtained a
judgment in an action for its recovery. 1
It is not, however, necessary in every case that the plaintiff should have
been in actual possession at the time of the trespass. It is enough if he has
the right to immediate possession at the time of the trespass and has actual
possession at the time of bringing his action. In such a case his possession
is said to relate back to the time when his right of entry accrued. So a
mortgagee who has only the right to take possession may sue for trespass
to the land, provided he has actually entered before bringing his action. 2
As soon as a person entitled to the possession of land peaceably enters
upon it in the assertion of that title, the law immediately vests in him the
actual possession. " If there are two persons in a field, each asserting that
the field is his and each doing some act in the assertion of the right of
possession, the person who has the title is in actual possession and the other
person is a trespasser. They differ in no other respects." 3 It cannot be
supposed that there is here a joint possession, or a possession by the two as
tenants in common.
If a person who is in possession of land demises it to another
for a term of years or any shorter period, and the tenant
enters and takes possession of the land, the landlord is ont of
possession, and no action of trespass will lie at his suit for an
entry on the land by a stranger, but only at the suit of
the tenant; he is in possession and is, therefore, the only
person aggrieved. 4 And this continues so even after the
expiration of the tenancy, so long as the tenant, rightfully or
wrongfully, continues in possession.
A landlord who is out of possession of his land may,
however, sue* for any injury of a permanent kind done to his
reversion (though the action strictly is not one of trespass). 5
Hence, where the injury done to the land or buildings is of a
sufficiently permanent character to affect the value of the
reversionary interest, the trespasser is liable to two actions
one at the suit of the tenant for the invasion of his possession,
and one by the landlord for the injury done to his reversion.
Thus, if a field is demised to a farmer and a stranger constantly walks
across that field, the farmer has a right to sue for the annoyance caused by
1 Turner v. Cameron's Coalbrook Steam Coal Co. (1850), 5 Exch. 932.
2 Barnett v. Earl of Guildford (1855), 11 Exch. 19 ; Ocean Accident Corporation
v. Ilford Gat Co., [1905] 2 K. B. 493.
3 Per Maule, J., in Jones v. Chapman (1847), 2 Exch. at p. 821 ; cited by
Parke, B. (1850), 5 Exch. at p. 947, and by Lord Selborne in Lows v. Telford
(1876), 1 App. Cas. at p. 426. Aud see Wellaway v. Courtier, [1918] 1 K. B. 200.
* Cooper v. Crabtren (1882), 20 Oh. D. 589, ante, p. 414.
5 See Dobson v.. Blachmore (1847), 9 Q. B. 991.
—