The first assignment of error presents the question whether evidence of the defendant’s conduct, with respect to the land upon which it is alleged that he committed a trespass prior to the date of the summons, subsequent thereto, may be heard to show that the trespass was committed in the assertion of ownership and was followed by possession. When the plaintiff sues in ejectment, or under The Code system of pleading and practice sues to recover possession, it is elementary that he must show title and, if denied, possession at the date of the summons. This the plaintiff concedes, but he insists that, having shown a trespass, an invasion of his possession, he may, for the purpose of showing that it was committed with the intention of asserting an adverse title, introduce evidence of acts of ownership and dominion on and over the land subsequent to the trespass and. the beginning of his action. It would seem that, if the defendant drove the plaintiff away from the land by violence or threats, and that suit was brought immediately, it should be *29competent for bim to show tbe animus with, which, the trespass was committed, by showing that he followed up the trespass by actual occupation and assertion of ownership. If in this case the plaintiff should show that the title to the land in controversy is in him, and that on the day named in the complaint defendant drove him from the occupancy or possession and immediately entered and assumed dominion, exercising acts of ownership, although subsequent to the date of the summons, why should plaintiff’s action be dismissed and he be compelled to start again? If defendant does not claim to own the land and assert that his unlawful conduct was a simple trespass, he can disclaim and put an end to the action. It does not come with good grace from him to say that, although he has followed up his wrongful act by actual possession, the plaintiff must be non-suited because he sued immediately upon the commission of the trespass. It is said: “If A enters on the land of B, without ousting him or doing some act equivalent to an ouster, he will not thereby acquire a seizin as against B, unless B elects to consider himself disseized.” 3 Washburn Real Prop., 187. “The possession of the defendant may be proved by his declaration, his occupation of the premises by residing thereon, or by any other acts of ownership which the case affords.” Tyler • on Eject., 473; ib., 875. “It is often very difficult and sometimes practically impossible to distinguish between acts which constitute merely trespasses on the land and acts amounting to a claim of title or an exercise of ownership over it; and, though trespass and ejectment are distinct remedies which must not be confounded, it is not an easy task to find the dividing line. The practice of encumbering actions for the trial of title with this issue of The possession of the defendant often results in the miscarriage of the action and places the claimant in an extremely awkward position. Thus, questions of fact involving the title are sometimes submitted to the jury, together with disputed facts as to the possession or occupancy of the lands by the defendant, and the jury, under the practice in some States, is allowed to render a general verdict.” Sedg. & Wait Trial Title, 236. With us the two issues are submitted. If the defendant *30does not wish, to litigate tbe title be can disclaim, and if tbe plaintiff fails to show a trespass or an ouster be will be taxed with tbe cost.
Independent, however, of tbis phase of the case, we think that in more than one aspect the plaintiff was entitled to go to the jury. It is manifest from the pleadings that the defendant denies a wrongful and unlawful withholding of possession of the locus in quo. Tbe testimony, if believed, shows that plaintiff’s agent was working upon it, building piers, preparatory to the erection of a hotel; that-defendant Lange came and said that it was bis property — they were building on bis land — not to build on it; that by tbis conduct plaintiff was prevented from proceeding with the work. Plaintiff Blomberg says that be beard defendant’s testimony, on a former trial, in regard to the shotgun. Tbis, followed by the evidence of hauling dirt on the land and covering the piers, shows clearly, that defendant is assuming ownership of the property and assuming dominion over it.
Whether the action is treated as one for the recovery of possession or to quiet title, pursuant to the act of 1893, ch. 763 (Revisal, sec. 1589), the plaintiff was entitled to go to the jury and have the controversy ended. Tbe Code system of pleading swept away the technicalities which in the old action of ejectment so often obstructed the trial of title to land. Tbis was followed by the statute of 1893, which removed the necessity for alleging the defendant was in possession. The plaintiff may now set out his claim of title, and if defendant disclaims any adverse claim the plaintiff pays the cost, and the title as between them is settled. Tbis remedial statute should be liberally construed to advance the remedy and permit the courts to bring the parties to an issue.
An interesting account of the legislation in the different States removing the difficulties which under the ancient writs used in England prevented parties from trying title is to be found in Sedg. & Wait Trial Title, sec. 80, et seq.: “If plaintiff sues for a trespass, and alleges title, defendant may join issue on title and admit the trespass, or, if be wish, be may deny the trespass, and thus the real question in controversy is presented. So, in an action for the recovery of possession, if defendant does not *31set up an adverse title be may deny possession, and the controversy will be narrowed to tbat question. He should not be permitted to trifle witb the court by litigating the title and denying possession. No one knows better tban be whether be is in possession of the land in controversy.” In this case, pending for six years and tried once (145 N. C., 311), the plaintiff is now non-suited, leaving the real question in controversy unsettled. This we do not think is allowable under our system of procedure. Either the defendant was committing an unjustifiable wrong when by bis conduct be stopped plaintiffs’ employees from working on the land, or be did so in the honest assertion of an adverse claim to the property. In either aspect of the case the plaintiff is entitled to appropriate relief. If defendant does not claim to own the strip of land be should be required to say so; if be does so claim, the controversy should be tried and settled. Tbe judgment of nonsuit must be set aside and the case tried upon its merits.