CHAPTER II.

FOR WHAT THE ACTION OF EJECTMENT WILL LIE.

THE nature of the property or thing which may be recovered by the action of ejectment is often regulated by statute. By the common law, and the general rule, an ejectment will not lie for any thing whereon an entry cannot be made, or of which the sheriff cannot deliver possession. It would follow, therefore, by this rule, that ejectment is only maintainable for corporeal hereditaments. Any thing attached to the soil of which the sheriff can deliver possession may be recovered in the action. A very good test is, that the thing claimed be a corporeal hereditament, that a right of entry exist at the time of the commencement of the action, and that the interests be visible and tangible; so that the sheriff' may deliver the possession to the plaintiff in execution of the judgment of the court. (Rowan v. Kelsey, 18 Barb. R. 484.)

Things that lie merely in grant are not the subjects of ejectment, because these, being incorporeal, are in their nature invisible, quæ nequo tangi nec videri possunt; and therefore not capable of being delivered in execution. An ejectment lies of a stable, because it is a word of determinate signification, and may be delivered by a writ of execution. So ejectment of a house, or of a chamber in the second story of such house, is good, there being certainly enough to direct the sheriff in the execution. (Doe v. Alderson, 1 Mees. & Welsb. R. 210. Crocker v. Fothergill, 2 Barn. & Ald. R. 652. Child ▾. Chappell, 9 N. Y. R. 246. Bacon's Abridgment, Ejectment, D. Vide, also, Jackson v. Buel, 9 Johns. R. 298. Jackson v. May, 16 ib. 184. White v. White, 1 Harrington's R. 202.) But while parcel of a building, as a room, being capable of delivery, is a subject of ejectment, if it be destroyed by fire, or so altered that it cannot be identified, the action will not lie. (Rowan v. Kelsey, supra.)

Land originally below ordinary high-water mark, on navigable waters, but now raised up and transformed into dry land, by human labor, is subject to all the incidents of other lands, and may, therefore, be recovered in ejectment. (The People v. Mauran, 5 Denio's R. 381.) So, also, it has been held that the owner of land may recover in ejectment the space above his land, as, for example, when an adjoining building overhangs it. This upon the princi

*

*

ple that the common-law signification of land embraces all above and below it to an indefinite extent; assuming, of course, that the owner is not limited in his rights by the conveyance under which he holds his land. (Sherry v. Frecking, 4 Duer's R. 452.) But the doctrine laid down in the case of Sherry v. Frecking has been examined in a later case in the supreme court of the state of New York, and expressly overruled. The justice who delivered the opinion of the court said: "The books furnish but a single case, so far as I have been able to discover, where ejectment was sustained under like circumstances; and yet, if the action would lie, it is remarkable that no other case has been reported to that effect, either in some one of the United States or in England. The books from the earliest reports in the English language, wherever the common law has prevailed, down to near the present time, are full of cases of actions of trespass on the case for nuisances under circumstances similar in principle to the present. The case above referred to, where ejectment was maintained, is that of Sherry v. Frecking (4 Duer, 452), where the wall of the defendant's house overhung the plaintiff's lot. The point appears, by the report of the case, to have been decided with little or no consideration, and without referring to a single authority to show that ejectment would lie. The court admit that the claim is a novel one, but remark that they do not see why it is not well founded, nor why, if A builds over, though not upon, B's land, B may not have his remedy by ejectment." The supreme court, accordingly, held that when one erects a building upon the line of his own premises, so that the eaves or gutters project over the land of his neighbor, this is not such an encroachment upon the possessions of the latter as will sustain an action of ejectment. (Aiken v. Benedict, 39 Barb. R. 400.) The doctrine of this latter case is more in harmony with the general principles governing the action to recover the possession of real property than that of the former, and maytherefore, be regarded as the better law.

The owner of the farm can sustain ejectment against a party who has exclusively appropriated a portion of a highway to his own use, or appropriates it to any other use than this servitude. (Wager v. The Troy Union R. R. Co., 25 N. Y. R. 526. Wright v. Carter, 3 Dutch. R. 76. Carpenter v. The Oswego and Syracuse R. R. Co., 24 N. Y. R. 655. Lozier v. The New York Cen. R. R. Co., 42 Barb. R. 465. Jackson v. Ilathaway, 15 Johns. R. 447.

Brown v. Galley, Lalor's Supp. 308. Goodtitle v. Alker, 1 Burr. R. 133. Stackpole v. Healy, 16 Mass. R. 35. Bolling v. Mayor, etc., 3 Rand. R. 563. Cooper v. Smith, 9 Serg. and Rawles' R. 26.) Even in a case where the owner of land conveys the same to another, excepting the part included in the highway, the grantor may maintain ejectinent against the grantee, who had dug up the highway and run a water-pipe across it; set out fruit and shade trees upon it; piled stone, lime and manure within its boundaries, and used a portion of it for farming purposes, and claimed as against the grantee to be the owner of the land and had a right to appropriate it to such uses. (Etz v. Daily, 20 Barb. R. 32. But vide Redfield v. Utica and Syracuse R. R. Co., 25 ib. 54.)

A party may have ejectment for right of herbage, pro prima tonsura; that is to say, if a man has a grant of the first grass that grows on the land every year, he may maintain ejectment against him who withholds it from him. (Ward v. Petifer, Cro. Car. 362.) So, also, ejectment may be had on a demise of the hay-grass and after-math (Wheeler v. Toulson, Hard. 330), on the principle, in these cases, that the parties, being entitled to all the profits of the land, are entitled also to the land for the same time, and no one can enter thereon while they are thus entitled without being a trespasser. But the ejectment in such case should not be brought for the land generally, but for the first grass or after-math thereof, as the case may be. (Adams on Ejectment, 22.) A right to the herbage will be sufficient to support an ejectment, because he who has a grant of the herbage has a particular interest in the soil, although by such grant the soil itself does not pass. But the ejectment should be for the herbage of the land, and not for the land itself. (Wheeler v. Toulson, Hardes' R. 330.)

In case the owner of the fee of the land suffers another to erect buildings thereon, with the understanding that when they are complete, he will either pay for them or convey the land, at his own election, and, he not making his election, the other continues in occupation, ejectment will lie by the occupant upon an ouster during such occupation. (King v. Catlin, 1 Tyler's R. 355.) So ejectment may be maintained against a vendee entering into possession of land under a contract of purchase, which he fails to perform on his part, on showing notice from the vendor that the contract is at an end. (Jackson v. Moncrief, 5 Wend. R. 26. Vide also Harver v. Morris, 4 Binn. R. 77. Mitchell v. De Roche, 1

Yeates' R. 12. Marlin v. Willink, 7 Serg. & Rawle's R. 297. Harle v. McCoy, 7 J. J. Marsh. R. 318.) Indeed, the authorities go to the extent of holding that when the purchaser of land has made default in the payment of money, under an executory contract, no notice to quit is necessary, nor any demand of the amount due, or of the possession, or tender of a deed, before bringing an action of ejectment. (Hotaling v. Hotaling, 47 Barb. R. 163. Powers v. Ingraham, 3 ib. 576. Doolittle v. Eddy, 7 ib. 74. Candee v. Haywood, 34 ib. 352. Wright v. Moore, 21 Wend. R. 230.) But it has been held in one case at least, that the vendee of land who has paid a part of the purchase-money, enters into possession, and fails to pay the residue, according to the terms of the contract of sale, cannot be dispossessed by the action of ejectment in favor of the vendor, without a notice to quit, or a notice that the contract is rescinded, or a demand of payment and notice of rescinding such contract. (Vide Costigan v. Wood, 5 Cranch's C. C. R. 507.) When lands are devised to trustees, to convert into money, and to invest the proceeds on bond and mortgage, and to collect and receive the income and profits thereof, and apply the same, during two specified lives, to the use of certain persons named, the trustees are seized of such an estate in the lands as will entitle them to maintain ejectment. (McLean v. Macdonald, 2 Barb. R. 534.) The heir who is entitled to the inheritance may have ejectment against a widow holding possession of the land of which her husband died seised, that is to say, after the expiration of her quarantine, if it do not appear that the land in controversy was assigned her as her dower. This is upon the assumption that no local statute exists authorizing her to remain in possession until her dower is assigned. (Vide Moore v. Gilliam, 5 Mumf. R. 346. Chapman v. Armistead, 4 ib. 382.) But, in several of the states, the widow, if in possession, cannot be ousted until her dower is assigned; and she is deemed a tenant in common with the heirs to the extent of her rights. This is the rule in Virginia, Kentucky, Connecticut, Rhode Island, New Jersey, Alabama, Illinois and Missouri; and of course, in those states, ejectment may not be brought by the heir as above stated. (Vide Den v. Dod, 1 Halst. R. 367. Stedman v. Fortune, 5 Cow. R. 462. Crocker v. Fox, 1 Root's R. 227. Calder v. Bull, 2 ib. 50. Phares v. Leechman, 20 Ala. R. 662. Springly v. Shields, 17 ib. 295. Shelton v. Carrol, 16 ib. 148. Rambo v. Bell, 3 Kelly's R. 207. Singleton

v. Singleton, 5 Dana's R. 89. Stokes v. McAllister, 2 Missouri R. 163.) In most of the states, however, ejectment may be had in such cases, as before stated.

Ejectment lies for land under water, on a title derived from the commissioners of the land office. (Champlain and St. Lawrence Railroad Company v. Valentine, 19 Barb. R. 484.) But the action does not lie for a mere right of way. (Northern Turnpike Company v. Smith, 15 Barb. R. 355.) Nor can ejectment be brought for a mere easement in any case. (Judd v. Leonard, 1 Chap. R. 204. Child v. Chappell, 9 N. Y. R. 246.) This rule is upon the principle that ejectment only lies for something tangible, something of which possession may be delivered by the sheriff to the plaintiff, which is the general doctrine, as has been before intimated. Neither will the action lie for an incorporeal hereditament. (Black v. Hepburn 2 Yeates' R. 331.) An ejectment lies of a boilery of salt, that is, a person having a lease or grant of so many buckets of salt water from a well of salt water, from the owner of the soil in which the well is located, which are withheld from him, may bring his ejectment for so many boileries as are secured to him by his grant. So an ejectment lies for a coal mine, because it is not to be considered as a bare profit apprender; but a coal mine comprehends the ground or soil itself, which may be delivered on the execution; and though a person may have a right to the mine without having any title to the soil, yet the mine itself being fixed in a certain place, the sheriff has a thing certain before him, to deliver in execution. (Bac. Abr. Ejectment, D. D.)

Ejectment will not lie against a mortgagee, or an assignee of a mortgagee in possession of the mortgaged premises, when such possession was lawfully acquired after condition broken. It cannot be denied that the mortgagee has an interest in the mortgaged premises, and that interest, after forfeiture, is a legal interest: it is indeed inchoate until foreclosure of his mortgage, but it has always been considered sufficient to protect him in the possession of the mortgaged premises, when legally obtained. (Phyfe v. Riley, 15 Wend. R. 248. St. John v. Bumpstead, 17 Barb. R. 100.) A tenant in common cannot maintain ejectment against his co-tenant, without showing an actual ouster or some act amounting to a total denial of his right. The denial must be such as to amount to a disseisin of the co-tenant, or establish an adverse possession on the part of the wrong-doer. (Edwards v. Bishop, 4 N.