CHAPTER XII. OF TRESPASS. without ouster; In the two preceding chapters we have considered such of injuries to injuries to real property, as consisted in an ouster, or real property amotion of the possession. Those which remain to be as 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 Trespass. that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in its largest and most ex- What, in its tensive sense, signifies any transgression or offence against largest sense. the law of nature (1), of society, or of the country in which (1) There appears to be some confusion attending the distinctions usually made between the law of nature, as it is called, and social or municipal law. The law of nature is the law of the strongest, or of the capable against the less capable, of the cunning against the simple. Trespass, in any legal sense of the word, must be an unknown term in natural law, if natural law mean any description of law, or if law mean regulation or controul of wills and appetencies and of power to gratify or sate them. It is in a social state only, more or less perfect as civilization shall have advanced, that what shall be deemed trespass may be recognized. None may sensibly speak of the aggressions made by one beast upon another, and call them trespasses, since it is by the law of nature that such aggressions should be made; and in the illustrations. we live; whether it relates to a man's person, or his proInstances and perty. 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 in 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 pro[*209] perty of another, * and therefore necessarily accompanied with some force, 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. it is not my purpose at present to in- tice, young, if not in very infancy. If, therefore, we reject the notion of natural law, and adopt law as the result of social aggregation, we shall have some principles, at least, upon which to fix our subsequent speculations upon law as it is found to controul and regulate the passions and feelings incident to the mere man. (2) The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very delicate; see the subject much considered in 2 Bl. Rep. 892, in a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall; the owner of which, to defend himself and his goods, took it up, and But in the limited and confined sense, in which we are Trespass in its at present to consider it, it signifies no more than an threw it to another part of the market, where it struck the plaintiff and put out his eye. The question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case and one of the four judges strenuously contended that it ought to have been an action upon the case. But I should humbly conceive, that the question was more properly this, viz. whether an action of trespass vi et armis lay against the original or intermediate thrower, or whether the act of the second thrower was involuntary, (which seems to have injury, the court and jury, waving all * The justness of Mr. Christian's conclusion may scarcely be doubted; but that so much difficulty should have presented itself as to the description of action by which the plaintiff sought Notes of the modern cases are subcompensation for the loss of his eye, is joined. See Leame v. Bray, 3 East, 593. not very creditable to the formal part of If the declaration state that the dethat system of jurisprudence wherein fendant's servant wilfully drove, &c., such difficulties are found. The per- case cannot be supported. Savignac v. sonal privation was misfortune enough Roome, 6 T. R. 125. But if the injury without the aggravation of paying costs, is stated to have occurred from neglihad it ultimately been adjudged that he gence, case seems to be the proper had mistakenly adopted one form of remedy. Rogers v. Imbleton, 2 N. R. remedy for another; and it is seen by 117. Morley v. Gaisford, 2 H. Bl. 447. the report that a learned judge would Ogle v. Barnes, 8 T. R. 188. So have so determined had the case de- where nonfeazance was averred to be pended upon his single opinion. It is the cause of the injury. Turner v. Hawtime then that these, and such as these kins, 1 B. & P. 472. Huggers v. Montdistinctions should be erased from our gomery, 2 N. R. 446. Trespass has books, and that if it shall be apparent been held proper wherever the cause of that enough is upon the record sup- the injury to the plaintiff happened ported by evidence to show that a man from the direct act of the defendant's has sustained an injury at the hands of servant or agent. Hopper v. Reeve, 1 another, and that that other meant and J. B. Moore, 407. 7 Taunt. 698. intended by his plea to deny the fact S. C. Day v. Edwards, 5 T. R. 648. of having committed or occasioned such Morgan v. Hughes, 2 T. R. 225. Webb more limited sense, and how to be treated. Where every owner's soil is a trespass. quired previous prohibition. 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 entry upon the without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman Roman law re- laws seem to have made a direct prohibition necessary, in order to constitute this injury; "qui alienum fundum ingreditur, potest a domino, si is præviderit, prohiberi ne ingrediatur (b).” [Whoever enters upon another's ground, the owner shall, if he foresee that the attempt will be made, forbid him to make it.] 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. But unnecessary by the English law. (b) Inst. 2, 1. 12. v. Allen, 1 Anst. 261. Barker v. Bra- 1 B. & A. 145. S. C. But trespass lies for continuing on the premises after the time allowed by law. Winterbourne v. Morgan, 11 East, 395. See also Sheriff v. James, 8 J. B. Moore, 334. 1 Bing. 341. S. C. For an irregular distress, Wallace v. King, 1 H. B!. 13. Whether the remedy for crim. con. be case or trespass seems to have been doubted. Macfagden v. Olivent, 3 East, 387. But case is the usual remedy. [*210 ] Every unwarrantable entry on another's soil the law What entitled entitles a trespass by breaking his close; the words of the trespass by breaking close writ of trespass commanding the defendant to show cause, quare clausum querentis fregit. For every man's land is in the eye of the law inclosed and set apart from his neighbours; and that either by a visible and material fence, as one field is divided from another by a hedge (3); or, by an invisible boundary, * existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. 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) (4). One must have a property (5) (either absolute or tem- What property, (c) F. N. B. 87, 88. claimant for damages for passing over (4) If it were practically, as it is theoretically, competent to every owner of the soil to enforce the law against a person who, without authority, merely passes over it, such law would be made instrumental to the effecting of much vexation; but the intervention of a jury tends to the mitigation of the law, and by the refusal to give large damages, such owners are wisely induced to look over many acts that may indeed be construed into a breach of the mere right, but which have only nominally injured it. But if a & C. 574. S. C. But it has been (5) Mere prior occupancy of land, however recent, gives a good title to the occupier, whereupon he may recover as plaintiff against all the world, except such as can prove an older and better title in themselves. Cafferis v. Cowper, 1 Taunt. 547. And see Graham v. Peat, 1 East, 244. Harper v. Charlesworth, 6 D. & R. 572. 4 B. |