1. Where surveys are made on any navigable water, the water shall form one side of the survey; and any island or islands in any navigable water may be entered, surveyed, and granted.
2. Where land is subject to entry and has been granted, the action of trespass q. c. f. lies, although the land is covered with water.
3. Where land is lapped by two deeds or grants, the adverse possession for seven years by a person not being in possession of the lapped part can give him no right against the superior title to the part so lapped.
4. One who is in the actual or constructive possession of land may recover damages from him who dispossesses him, though not in possession at the time of the action brought. No ulterior profits or damages can be recovered until he regains the possession; and then the law, by relation, would adjudge him to have been in possession from the first ouster, and entitle him to damages for all the time the defendants wrongfully held the lands.
DANIEL, J.
Where surveys are made on any navigable water, the water shall form one side of the survey; and any island or islands in any navigable waters may be surveyed and granted. Rev. Stat., ch. 42, sec. 1. The grant, dated in 1796, under which the plaintiff claimed the land does not cover any navigable water, whether we are to understand the term in its common-law sense or according to any meaning it has received in this State. The locus in quo was, we think, subject to entry and grant. And this action is well brought, for it (178) lies although the land is covered by water. Co. Lit., 4; Yelver, 143. Secondly, we are of opinion that the seven years possession of Terry and those under whom the defendant claim under a color of title (not being on the locus in quo or on that part of the land where the deeds of the respective parties lap on each other) did not give them a title to any part of the land contained in the lap, as the title of the plaintiff was the elder and better title and extended to the boundaries mentioned in his grant and deeds, and as no adverse possession interfered with him within the scope of his boundaries. Carson v. Burnett, 18 N.C. 546. The plaintiff, and those under whom he claims, were never at any time ousted of any portion of their land so as to be put to their right of entry. The defendant and those under whom he claims had never taken any possession of the land claimed by the plaintiff so that an action of ejectment could have been maintained against him or them. How, then, can it be contended that a possession by Terry and the defendants of land which the plaintiff never claimed or had any title deeds to cover could be an actual adverse possession of those lands, or any part of them, lying within the boundaries of the plaintiff's grant and deeds? It cannot be so. If the defendants, or those under whom they claim, or either of them, had entered on that part of the land comprised in the lap, and continued in actual adverse possession for seven years of that, the plaintiff's right of entry would have been tolled as to that; and then the defendant's inferior title to the lapped part would have become the better title to that part. Thirdly, we think the charge of the judge was correct upon the third point. The plaintiff was constructively in possession of the locus in quo, as he had the possession by virtue of the legal title, and the action of trespass quare clausum fregit is always brought to recover damages for any injury to the plaintiff's possession of lands. The unlawful entry of the defendants upon the plaintiff's land, and then and there erecting the dam in 1836, was an injury to his then constructive possession; and although (179) the plaintiff might not have been in possession of the land, either actually or constructively, at the time of the issuing of his writ, he nevertheless might well maintain this action if he was in possession of the locus at the time the injury or trespass was first committed by the defendants; for it is the damages sustained by the plaintiff by the very act of dispossessing him of his land by the defendants that he now seeks to recover. He was injured in his possession by that very act. Graham v. Houston, 15 N.C. 232. No ulterior profits or damages, it is true, could be recovered until he regained his possession; and then the law, by relation, would adjudge him to have been in possession from the first ouster and entitle him to recover damages for all the time the defendants had wrongfully held the lands and kept him out of possession. If a man is disseized, he may bring trespass against the disseizor for the act of disseizin. 2 Rolle's Abr., 553; Co. Lit., 257 (a); Com. Dig., Trespass, B 2; Roscoe on Actions, 663. And if he reenter, he may have trespass against the disseizor or a stranger for continuing in possession, for by the reentry he revests the possession in himself, ab initio. Roscoe on Actions, 663, 664, and the cases there cited.
PER CURIAM. No error.
Cited: S. v. Glen, 52 N.C. 326; Hedrick v. Gobble, 61 N.C. 349; London v. Bear, 84 N.C. 272; Maxwell v. Jones, 90 N.C. 327; McLaughlin v. Mfg. Co., 103 N.C. 106; McLean v. Smith, 106 N.C. 176; Gwaltney v. Timber Co., 115 N.C. 585; Rowe v. Lumber Co., 128 N.C. 303.
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