the person who is in actual possession of the premises at the time the injury occurred, although his possession is subordinate to another, is the proper party to maintain the action.1 Trespass is a disturbance of the possessory right only, and the party affected by such disturbance is of course the proper party to maintain the action.2 The entry of a lessor on the rightful possession of his lessee is as much a trespass as though made by any other person, and unless he reserved to himself a certain portion of the premises, he is responsible to the lessee for any encroachment upon or interference with his possession of the premises. Where he reserves, however, a certain portion of the premises, or any buildings erected on the premises demised, or reserves the right to use the whole of the demised premises for certain purposes, the lessee in turn can be held responsible for any interference with this right on the part of the lessor. During the continuance of the tenancy two actions may be maintained for an injury to the estate; one by the lessee for the disturbance of his possessory rights and one by the lessor for the injury to his reversion. But after the termination of the tenancy, the lessor may enter upon the premises at any time, and all

1 Cooley on Torts, p. 384 and cases cited. Smith v. Price, 42 Ill. 399; MacSwinney on Mines, p. 533 and cases cited.

2 Ante, idem. So in the case of copyhold lands, the tenant in possession is the party to maintain an action for injuries from mining coal by an adjoining mine owner. Lewis v. Branthwaite, 2 B. & Ad. 437.

3 MacSwinney on Mines, p. 533 et sub.; Keyes v. Powell, 2 E. & B. 132. And see, as to lessor's liability to third parties, Dundas v. Muhlenberg, 35 Pa. 351.

4 Jordan v. Staples, 57 Me. 352. But as to the lessee's rights see Taylor's Land. & Ten., § 776, p. 662.

5 Taylor's Land. & Ten., § 764 et sub.

reversioner. Taylor, §§ 783-784.

Case is the proper remedy of

those who are found there without authority, are, and can be regarded by him as trespassers.1

§ 553. Same - For removal of fixtures. The lessor can maintain the action of trespass against his lessee, during the continuance of the lease, if the latter, for any reason, removes fixtures from the freehold which should not have been removed by him. But the action quare clausum fregit will not lie against a lessee, during the continuance of the lease, where he wrongfully removes fixtures, under color of the law of fixtures, which were connected to the freehold by himself while he was in under the lease, or were demised to him together with the rest of the premises. And after the severance of the fixtures, if the lessee reduced the same to his possession, the right of property would entitle him to the continued right of possession, and the action of trespass de bonis asportatis would lie any time after the severance against anyone who interfered with the lessee's right of possession. But the lessee must first have the right of property in the fixtures before the removal would entitle

1 Cooley on Torts, p. 385 and cases cited. For action by reversioner for extraction of coal, see Rain v. Alderson, 6 Scott, 691; MacSwinney, p. 533. A lessor who wrongfully authorizes his lessees to trespass upon an adjoining owner and remove mineral, is himself liable for the mineral so taken. Donovan v. Con. Coal Co., 187 Ill. 28; 58 N. E. Rep. 290. Lessee can maintain action. Strahlberg v. Jones, supra. Or the lessor either. Bobb v. Syenite Granite Co., 41 Mo. App. 642.

2 Farrant v. Thompson, 5 B. & A. 826.

3 Taylor's Land. & Ten., § 770, p. 658 (7 Ed.). But where there is nothing in the lease to prevent the removal of trade fixtures, as mining machinery, the lessee has a reasonable time to remove same after the termination of the tenancy. Sumner v. Bramilaw, 34 L. J. Q. B. 130; Desloge v. Pearce, 38 Mo. 588; Rallestor v. New, 4 Kay & J. 640. But see, where tenancy terminates by lessee's own act, Storer v. Hunter, 3 B. & C. 368; Mor. Min. Dig. 201.

4 Taylor's Land. & Ten., supra.

him to the possession, and if he is not the real owner of the same, under the law of fixtures, the mere fact that he had severed them from the freehold, would not entitle him to maintain trespass against the true owner, for a subsequent removal of the same,1 and although he is entitled to enter upon the premises, after the determination of the lease for the purpose of removing implements,2 yet he is not entitled to enter on the premises after the termination of the tenancy, for the purpose of removing fixtures left there by himself, for the right of property in the fixtures does not give him the right of re-entry, for the purpose of removing the same, and if he does enter for this purpose, as his entry is wrongful under the law, the lessor can maintain the action of trespass against him for such entry.3

§ 554. When licensee may maintain action. - As against a mere wrong-doer, a party in possession under a

1 Ante, idem. And there are authorities that the tenant can only exercise his right of removal in any case during the tenancy. Ewell on Fixtures, 138–139. Although some cases hold the contrary. Id. 139–140. But in order to remove lessee must have complied with all conditions precedent. Ewell on Fixtures, 155-166. And the right of removal is subject to special agreement. Id. 149-166.

2 Taylor's L. & T., § 770, and cases cited..

3 Taylor Land. & Ten., § 770, p. 658; Ewell on Fixtures, pp. 138-139; Davis v. Moss, 38 Pa. St. 346; Stockwell v. Marks, 17 Me. 455; Moore v. Smith, 24 Ill. 512; Marshall v. Lloyd, 2 M. & W. 450. And such, perhaps, is the weight of authority. The law held fixtures a gift in reversion, when not removed during term. Poole's Case, 1 Salk. 368; s. c. Holt, 65. And where the term is terminated by lessee's own act, this rule would perhaps still obtain. Storer v. Hunter, 3 B. & C. 368; 5 Dow. & Ry. 240; Mor. Min. Dig., p. 201. But in the case of mining machinery, in the absence of contract, it is subject to exception. Desloge v. Pearce, 38 Mo. 588; Storer v. Hunter, supra; Rallston v. New, 4 K. & J. 640; 34 L. J. Q. B. 130; Ewell on Fixtures, 139-140.

parol license can maintain trespass.1 This right in a licensee has been sustained on the ground that a party in possession, even though without title, has superior rights to a mere wrong-doer; 2 and although it is a legal presumption akin to fiction to recognize a right of possession for any purpose, in a mere licensee, since possession is not an incident to a mere license, this presumption of a right has been so far recognized on the part of a licensee, that if he can show a color of a right to a mine or vein and acts of ownership as to any part of the minerals, the law, as against a stranger, will presume his right of property in the minerals for the purpose of sustaining an action of trespass, and a party mining under a contract for a lease has been treated as so far in possession as to enable him to maintain the action. But this legal presumption of a right, which, like all presumptions, rather shows the absence of the right, cannot avail a licensee as against the owner of the land, in case of a dispossession by the latter, notwithstanding it will support an action against a wrong-doer, for in the case of the owner, the licensee is not aided by any presumption of a right where none exists, and he is held not to be entitled to the possession."

1 Harper v. Charlesworth, 4 B. & C. 574. But see, contra, Freer v. Stotenburr, 2 Abb. App. 189; reversing 36 Barb. 641.

2 Taylor's Land & Ten., § 772, p. 659 (7 Ed.).

3 Lockwood v. Lunsford, 56 Mo. 68 (a leading case on mining license); Riddle v. Brown, 20 Ala. 412; Glaniger v. Coal Co., 55 Pa. St. 9: Carr v. Benson, L. R. 3 Ch. App. 524; Desloge v. Pearce, 38 Mo. 588-599.

Taylor v. Parry, 1 Scott N. R. 576; Wied v. Holt, 9 M. & W. 672; Low Moor Co. v. Stanley Co., 33 L. T. 436; MacSwinney on Mines, p. 532.

5 Davis v. Shepherd, 1 Ch. 410-420; Thew v. Wingate, 10 B. & S. 721. 6 MacSwinney on Mines, p. 532, and authorities cited above. Fuhr v. Dean, 26 Mo. 116, and cases cited. Second licensee may maintain trespass against prior licensee, after revocation, for continuance in possession by licensee. Hicks v. Swift Cr. M. Co., 31 South. Rep.

§ 555. For injury to freehold Who may maintain. For injuries to real estate, the action of waste, which has already been discussed, furnishes the most complete remedy on the part of the owner of the land, as against the tenant of the particular estate; but where the injury occurs by an outsider, trespass is the action usually resorted to for such an injury, and the action of the owner for injury to the freehold is no bar to an action by the tenant.1 An absolute right of property is not necessary in order to maintain the action; 2 actual possession is sufficient against one who cannot show a better title, and a mere licensee, while in possession of the land, may maintain the action against a wrong-doer.3 The party having the legal title can treat as intruders all persons going upon the land, except such as may be authorized by law to go there; but

4

947. Party in employ of licensee, who commits acts that would otherwise be a trespass, such as cutting of timber, etc., cannot be treated as a trespasser, before license revoked. Smith v. Morse, 75 N. Y. S. 126; 70 App. Div. 318. But, as to status after license revoked, see Lockwood v. Lunsford, 56 Mo. 68; Lunsford v. Lead Co., 54 Mo. 426.

1 Taylor's Land & Ten., § 764, p. 654 (7 Ed.); Id., § 771, p. 659.

2 Cochran v. Whitesides, 34 Mo. 417.

3 Harper v. Charlesworth, 4 B. & C. 574. "Courts of equity will not ordinarily interfere to enjoin the commission of a threatened trespass to real property, unless the trespass be one going to the destruction of the substance of the estate, such as the extracting of ores, the cutting down of timber, the digging of coals and the like. The jurisdiction of the court in such cases is asserted for the preservation of the property pending proceedings at law for the determination of the title." LeRoy v. Wright, 4 Saw. 535; Mor. Min. Dig. 382. "A party in possession of a ditch and the water incident to the ditch, may maintain an action against trespassers, although the legal title to the ditch be outstanding." Barkley v. Tieleke, 2 Mont. 59; M. M. D. 378. "Claim for damages in trespass, quarrying and taking away asphaltum, is assignable, and the assignee may sue in his own name under section 4 of the practice act." More v. Massini, 32 Cal. 590; M. M. D. 381.

And one having the legal title has possession sufficient to maintain the action. Crenshaw v. Ullman, 113 Mo. 633.