CHAPTER XII.

OF TRESPASS (1).

In the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. "Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live ; whether it relates to a man's person, or his property.

Therefore beating another is a trespass ; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded : and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense ; for which we have already seen (a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, (*209] an action of trespass vi et armis will lie ; but, if the injury is only consequential, a special action of trespass on the case may be brought (2).

(a) See page 123.

a

(1) See in general, Com. Dig. Trespass; thrower, or whether the act of the second Bac. Ab. Trespass; Vin. Ab. Trespass ; 1 thrower was involuntary,(which seems to have Chitty on Pl. 149 to 172.

been the opinion of the jury), or wilful and (2) See these distinctions fully considered, mischievous, and if so, whether the first 1 Chitty on Pl. 115 to 122, and 149 to 172. thrower alone ought not to have been answerThe distinctions between actions of trespass able for the consequences. For if A. throws ri et armis for an immediate injury, and actions a stone at B., which, after it lies quietly at his of trespass upon the case for a consequential foot, B. takes up and throws again at C., it is damage, are frequently very subtle : see the presumed that c. has his action against B. subject much considered in 2 Bl. Rep. 892.f only; but if it is thrown at B., and B., by In a case where an action of trespass vi et ar- warding it off from himself, gives it a different mis was brought against the defendant for direction, in consequence of which it strikes throwing a lighted squih in a public market, C., in that case, it is wholly the act of A., and which fell upon a stall, the owner of which, to B. must be considered merely as an inanidefend himself and his goods, took it up and mate object, which may chance to divert its threw it to another part of the market, where

In the case of Leame v. Bray, 3 East, it struck the plaintiff and put out his eye; the 598, it was decided, that if one man drives a question was much discussed, whether the carriage, being on the wrong side of the road, person injured ought to have brought an action against another carriage, though unintenof trespass vi et armis, or an action upon the tionally, the action ought to be trespass vi et case ; and one of the four judges strenuously armis, and the court declare generally, that if contended that it ought to have been an action the injurious act be the immediate result of upon the case. But I should conceive, that the force originally applied by the defendant, the question was more properly this, viz. and the plaintiff be injured by it, it is the subwhether an action of trespass vi et armis lay ject of an action of trespass vi et armis by all against the original or the intermediate the cases both ancient and modern.

course.

+ In New-York, by 2 R. S. 553, 16, case may be brought wherever trespass could, except for wrongs to real estate. Vol. II.

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But in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil : every entry therefore thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury; " qui alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur (6).” But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another's lands (unless by the owner's leave, or in some very particular cases), as an injury or wrong, for satisfaction of which an action of trespass will lie ; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained (3).

Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close : the words of the writ of trespass commanding the defendant to shew cause quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbour's : and that either by a visible and material fence, as one field is divided

from another by a hedge; or by an ideal invisible boundary, [*210] *existing only in the contemplation of law, as when one man's land adjoins to another's in the same field (4). And every

such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage (c) (5).

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass ; or, at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land (d) (6). Thus if a meadow be (b) Inst. 2. 1. 12.

(d) Dyer, 285. 2 Roll. Abr. 549. (c) F. N. B. 87, 88.

(3) Trespass for breaking a close is sustain- (6) As to the possession and title essential, able without previous notice; but it is most see Chitty on Pl. 159 10 166. An exclusive prudent to serve a notice, and proceed for a interest in the crop, without an interest in the subsequent trespass, upon which the judge on soil, is sufficient to sustain an action of tresthe trial will usually certify that the trespass pass.

Bro. Abr. Tres. 273. was wilful, which will entiile plaintiff to full Bull. N. P. 85. But possession, actual or costs, though the damages be under 40s. 8 & constructive, must be proved. 1 East, 244. 4 9 W. III. c. 11. s. 4. 3 Wils. 325. 6 T. R. Taunt. 547. 6 East, 602. Trespass will not 11. 7 T. R. 449. 3 East, 405.7

lie for entering a pew or seat, because the (4) Doctor & Stud. 30. 7 East, 207. 2 plaintiff has not the exclusive possession, the Stra. 1004. Burr. 133.

possession of the church being in the parson. (5) In an action of trespass for entering the i T. R. 430. If trees are excepied in the lease, grounds of another person, and sporting over the land whereon they grow is necessarily exthem, the jury may take into consideration, in cepled also, consequently the landlord may determining their verdict, not only the actual maintain trespass for breaking his close, if the damage sustained by the plaintiff, but circum- tenant cut down the trees. Selw. N. P. 1287. stances of aggravation and insuli on the part where two fields are separated by a hedge of the defendant. Merest v. Harvey, 1 Marsh. and ditch, the hedge prima facie belongs to the 139. 5 Taunt. 442.

owner of the field in which the ditch is not. If + See in New-York, 2 R.'S. 614, § 12.

a

3 Burr. 1826.

divided annually among the parishioners by lot, then after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes (e) for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law (f). And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land : but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done ; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him ( g). Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the possession of the owner. But now by the statute 6 Anne, c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the *deter- [*211] mination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers (7); and any reversioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect (8). And by the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case, after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the ahnual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession ; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and afterwards neglects to carry that notice into due execution (9), (10).

A man is answerable for not only his own trespass, but that of his cattle also : for, if by his negligent keeping they stray upon the land of another, (and much more if he permits, or drives them on), and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case ; by permitting him to distrain the cattle thus damage-feasant, or doing damage, till the owner shall make

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him satisfaction: or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle, is the action of trespass vi et armis ; whereby a man is called upon to answer, quare vi et armis clausum ipsius A.apud B.fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, fc. (h): for the law always couples

the idea of force with that of intrusion upon the property of an[*212] other. And herein, if any unwarrantable act of the defendant

or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages ; such however as the jury shall think proper to assess.

In trespasses of a permanent nature, where the injury, is continually renewed, (as by spoiling or consuming the herbage with the defendant's cattle), the declaration may allege the injury to have been committed by continuation from one given day to another (which is called laying the action with a continuando), and the plaintiff shall not be compelled to bring separate actions for every day's separate offence (i). But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass committed, (as cutting down a certain number of trees), they may be laid to be done, not continually, but at divers days and times within a given period (k) (11).

In some cases trespass is justifiable ; or rather entry on another's land or house shall not in those cases be accounted trespass : as if a man comes thither to demand or pay money, there payable ; or to execute, in a legal manner, the process of the law. Also a man may justify entering into an inn or public-house, without the leave of the owner first specially asked ; because when a man prosesses the keeping such inn or public-house, he thereby gives a general licence to any person to enter his doors. landlord may justify entering to distrain for rent; a commoner to attend his cattle, commoning on another's land ; and a reversioner, to see if any waste be committed on the estate ; for the apparent necessity of the thing (?). Also it hath been said, that by the common law and custom of England,

the poor are allowed to enter and glean upon another's ground [*213] after the harvest, without *being guilty of trespass (m): which

humane provision seems borrowed from the mosaical law (n) (12). ih) Registr. 94.

So a

a

a

In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public (o) (13). But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio (p): as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner this wrongful act shall affect and have relation back even to bis first entry, and make the whole a trespass (q). But a bare nonfeasance, as not paying for the wine he calls for, will not make him a trespasser : for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him (r). So if a landlord distrained for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio (s):' and so indeed would any other irregularity have done, till the statute 11 Geo. II. c. 19. which enacts, that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio(t). So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though *the law warrants the hunting of such noxious animals for the [*214] public good, yet it is held (u) that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful.

A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land ; whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered ; nothing being recovered but damages for the wrong committed.

In order to prevent trifling and vexatious actions of trespass, as well as

(0) Cro. Jac. 321.
(p) Finch, L. 47. Cro. Jac. 148.
(9) 2 Roll. Abr. 561.
(1) 8 Rep. 147.

(8) Finch, L. 47.
(1) 8 Rep. 146.
(u) Cro. Jac. 321.

:

(13) It has been determined, that it is law. the consent of others. There may be such a ful to follow a fox with horses and hounds public nuisance by a noxious animal as may over another's ground, if no more damage be justify the running him to his earth, but then done than is necessary for the destruction of you cannot justify the digging for him afterthe animal by such a pursuit. I T. R. 338. wards ; that has been ascertained and settled Bat in the Earl of Essex v. Capel, Hertford to be law : but even if an animal may be purassizes, A. D. 1809, 2 Chitty Gaine L. 1381, sued with dogs, it does not follow that fifty or a differen' doctrine was laid down by lord El- sixty people have therefore a right to follow lenborough, who said, " these pleasures are the dogs, and trespass on other people's lands." to be taken only when there is the consent of The jury, under his lordship's direction, found those who are likely to be injured by them, a verdict for the plaintiff. “And seo 1 Stark. but they must be necessarily subservient to 351.