Constructive possession is sufficient in this State to support the action of trespass quare clausum fregit.
TAYLOR, J.
This is an action of trespass, for breaking the plaintiff's close, entering upon his lands, etc.; and defendant's counsel, relying upon the English law, insists that an actual possession in the plaintiff at the time of the trespass committed is necessary to be proved to support the action. In England all their lands are occupied, and a trespass cannot be committed but upon the possession of some one, and it must be proved who was the actual occupant, for the purpose of ascertaining the person who is entitled to the action. Here a great part of our lands are not occupied by any actual possession; and if he were to require the same proof that is required by the English law, we should expose the unoccupied lands of every person to be trespassed upon, and the timber to be cut down and destroyed to whatever extent those who were in the neighborhood thought proper, and the owner could have no remedy.
NOTE. — See McMillan v. Hafley, 4 N.C. 186; Graham v. Houston, 15 N.C. 232; Dobbs v. Gullidge, 20 N.C. 68; Tredwell v. Reddick, 23 N.C. 56; Harton v. Hensley, ibid., 163.
Cited: London v. Bear, 84 N.C. 272.