Our cases hold that an abutting owner may recover damages for cutting shade trees on the sidewalk, which afford protection to his property, where such cutting is done in furtherance of some private interest, individual or corporate; and this though the act complained of may have been sanctioned by the municipal authority. Moore v. Power Co., *11163 N. C., 300; Brown v. Electric Co., 138 N. C., 535. Referring to these cases and the position they uphold, in Wood v. Land Co., 163 N. C., at p. 371, the Court said: “That case, Brown v. Electric Co., was made to rest chiefly on the position that, notwithstanding a previous dedication and use as a public street, an abutting owner continued to have a proprietary interest in a shade tree standing on or near his sidewalk and affording shade and shelter to his lot which the law would protect and which could not be taken from him without compensation except when required by the public interests.”
It is also held here, and by well considered cases elsewhere, that the principle is not affected by the fact that the ultimate title to the streets is in the municipality. Moore v. Power Co., supra; Donahue v. Keystone Gas Co., 181 N. Y., 313; Norman Milling Co. v. Bethurem, 41 Ark., 735, reported also in L. R. A., N. S., p. 1082. And, on the facts of the present case, authority is to the effect, further, that punitive damages maybe awarded (Carmichael v. Telephone Co., 157 N. C., 21; Williams v. R. R., 144 N. C., 498; Brown v. Electric Co., 138 N. C., 535); such damages, when permissible, and the amount, being properly referred to the jury for decision. Billings v. Observer Co., 150 N. C., 540.
It was further insisted for defendant that the motion for nonsuit should have been allowed, for the reason that the injury complained of was to the freehold and no title in plaintiff had been shown, citing Daniel v. R. R., 158 N. C., 418.
It is not at all clear that the damage complained of in this case is entirely to the freehold; but if this be conceded, we are of opinion that defendant’s motion to nonsuit on this ground was properly denied. It is the recognized position in this State that an action of this character may be maintained by one who shows that he is in peaceable possession of the property at the time of the alleged trespass, and we think it a proper deduction from the cases on the subject that one in possession, claiming title, and particularly when in the assertion of ownership under a deed, may, as against a wrong-doer, and nothing else appearing, recover the entire damage done, for, as to him, the occupant is presumed to be the owner until the contrary is made to appear. Frisbee v. Marshall, 122 N. C., 760; Nelson v. Ins. Co., 120 N. C., 302; Gwaltney v. Lumber Co., 115 N. C., 579; Aycock v. R. R., 89 N. C., 321; Lamb v. Swain, 48 N. C., 370. In the last case the headnote is: “The claimant of a tract of land under color of title who puts a servant in a house situated upon it with the privilege of getting firewood is in possession of the whole tract as against a wrong-doer, and can maintain an action against one who enters and cuts timber on the woodland.” And in Nelson v. Ins. Co. it was held, among other things: “The possession of land under a deed apparently good and sufficient, properly acknowledged and recorded, and unim-*12peached, is sufficient evidence of title; and where such facts appeared on the trial of an issue as to whether plaintiff was the owner of certain property it was not error to instruct the jury that, if they believed the evidence, they should answer in the affirmative.”
The statement in Daniel v. R. R., relied upon by counsel, to the effect that for injuries to the freehold only the owner can recover, was made in reference to a proposition where all of the relevant facts were disclosed and it affirmatively appeared that the original owner and claimant had conveyed the title, and, so understood, the position is undoubtedly correct, but it was not intended by the learned judge to trench upon or impair the wholesome doctrine that one in the peaceable possession of property, as against a wrong-doer, and assuredly so when the possession has been maintained, is presumed to be the owner until the contrary appears, and is not put to the expense and trouble of always establishing his title against any and every one who may have wrongfully and temporarily trespassed upon him. Speaking to the position in Myrick v. Bishop, 8 N. C., pp. 485-486, Henderson, J., said: “Possession alone is sufficient to maintain trespass against a wrong-doer.And it is consistent with first principles, and, in fact, it would be strange if it were not so, for wretched would be the policy which required the title to be shown in every instance where the peaceable possession was disturbed by the intruder, who had no right,” etc.
There is no error, and the judgment for plaintiff must be affirmed.
No error.