¶1delivered the opinion of the court.
¶2The only question of law, which seems of any importance in this case was as to what constituted an actual possession of land, for the purpose of maintaining an action of trespass.
¶3The defendants were tenants under one Dent of two small lots in the neighborhood of Carondelet upon which there was a stable and corn» crib. Dent claimed these lots and other land contiguous thereto under a Spanish claim, called the Boli claim, and had been in possession of the locus in quo since 1838, by himself or tenants. The plaintiffs bought some lots from the town of Carondelet, which embraced the small lot occupied by defendants and a portion of the Boli claim unin-closed. Tiie plaintiffs run a fence entirely round their lot, which of course included the stable, corn-crib, &c., of the defendants, and the defendants to get to and from their enclosure had necessarily to take down this fence of the plaintiff. Supposing the facts to be as stated, the question was, had the plaintiff any possession of the small lots upon which the stable, &c., stood?
¶4We think not. An actual possesion cannot be ousted in this way. If it could, it would be a very convenient mode of shifting the onus of proving title, by forcing a person who would be a defendant to assume the character of plaintiff in an action of ejectment.
¶5As to the right of wa}-, spoken of in the instruction, I do not see, that it was material. The plaintiff could not get possession of that part of the lots covered by the Boli claim, in the occupation of another adverse claimant, by simply running a fence across or around it. .
¶6Whether Dent’s tenants were actually in possession of the lots claimed by him, or had abandoned them before the plaintiffs run their fence, was a question for the jury and was so declared- in the instructions given.
¶7Judgment affirmed.