The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate; amounting commonly to one shilling, or some other trivial sum. In order, therefore, to complete the remedy, when the possession has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. (6) Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lessor, against the tenant in possession: whether he be made party to the ejectment, or suffers judgment to go by default. (x) In this case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff; but if the plaintiff sues for any antecedent profits, the defendant may make a new defence. (7)

Such is the modern way of obliquely bringing in question the title to lands and tenements, in order to try it in this collateral manner; a method which is now universally adopted in almost every case. It is founded on the same principle as the ancient writs of assize, being calculated to try the mere possessory title to an estate; and hath succeeded to those real actions, as being infinitely more convenient for attaining the end of justice; because the form of the proceeding being entirely fictitious, it is wholly in the power of the court to direct the application of that fiction, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the *judges) (y) are "judicially to be considered as the fictitious form of an action, really brought by the lessor [*206] of the plaintiff against the tenant in possession: invented, under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being entangled in the nicety of pleading on either side." (8)

But a writ of ejectment is not an adequate means to try the title of all estates; for on those things whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament: (2) except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII, c. 7, which doctrine hath since been extended by analogy to tithes in the hands of the clergy: (a) nor will it lie in such cases, where the entry of him that hath right is taken away by descent, discontinuance, twenty years' dispossession, or otherwisc.

(x) Burr. 668.

(y) Mich. 32. Geo. II. Burr, 668. (a) Cro. Car. 301. 2 Lord Raym. 789.

(z) Browǹl. 129. Cro. Car. 492. Stra. 54.

the premises, are allowed to be made co-defendants, and in others, ejectment may be brought to try conflicting rights when the premises are not occupied at all. In general, means are prescribed by which the defeated party in the action can have a second trial as of right. If the plaintiff succeeds, he is allowed to have damages assessed by a proceeding in the same suit.

And in many of the states statutes will be found allowing the defendant, who has been in possession claiming title, to recover of the successful plaintiff the value of his improvements or "betterments" in certain classes of cases.

(6) This subject is covered by the common law procedure act, 1852.

(7) [The defendant may plead the statute of limitations, and by that means protect himself from the payment of all mesne profits, except those which have accrued within the last six years. Bull. N. P. 88.]

(8) [Actions of ejectment, as has been observed, have succeeded to those actions called possessory actions; but an inconvenience was found to result from them which did not follow from real actions, to which it has been found necessary to apply a remedy. Real actions could not be brought twice for the same thing; but a person might bring as many ejectments as he pleased; which rendered the rights of parties subject to endless litigation. To remedy this, therefore, when two or more verdicts have been had upon the same title, and to the satisfaction of the court, the courts of equity will now grant a perpetual injunction to restrain the party from bringing any further ejectment. See Barefoot v. Fry. Bunb. 158, pi. 228; Selw. N. P. 780.]

This action of ejectment is, however, rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II, c. 28, which enacts that every landlord, who hath by his lease a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards.

2. The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrongdoer or ejector is not himself in "possession of the lands, but [*207] another who claims under him. As where a man leaseth lands to another for years, and, after, the lessor or reversioner cntereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firma or ejectment against the feoffee: because he did not eject him, but the reversioner; neither can he have any such action to recover his term against the reversioner, who did oust him; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2, c. 24, as in a case where no adequate remedy was already provided. (b) And the action is brought against the feoffee for deforcing, or keeping out, the original lessee, during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains; and also shall have actual damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession (by what means soever he acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse. (9)

CHAPTER XII.

OF TRESPASS.

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, an action of

trespass vi et armis will lie; but, if the injury is only consequential, a [*209]

special action of trespass on the case may be brought. (1)

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 præviderit, prohiberi ne ingrediatur." (b) 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 land (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.

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 show 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, *existing only in the contemplation of law, as when one man's land adjoins to another's in the [*210] 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)(2)

(1) [See these distinctions fully considered, 1 Chitty on Pl. 115 to 122, and 149 to 172. 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 subtle: 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 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 conceive, that the question was more properly this, viz.: whether an action of trespass vi et armis lay against the original or the intermediate thrower, or whether the act of the second thrower was involuntary, (which seems to have been the opinion of the jury), or wilful and mischevious, and if so, whether the first thrower alone ought not to have been answerable for the consequences. For if A throws a stone at B, which, after it lies quietly at his foot, B takes up and throws again at C, it is presumed that C has his action against B only; but if it is thrown at B, and B. by warding it off from himself, gives it a different direction, in consequence of which it strikes C, in that case, it is wholly the act of A, and B must be considered merely as an inanimate object, which may chance to divert its course. In the case of Leame v. Bray, 3 East, 598, it was decided, that if one man drives a carriage, being on the wrong side of the road, against another carriage, though unintentionally, the action ought to be trespass vi et armis, and the court declare generally, that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern.]

(2) [In an action of trespass for entering the grounds of another person, and sporting over them, the jury may take into consideration, in determining their verdict, not only the actual damage sustained by the plaintiff, but circumstances of aggravation and insult on the part of the defendant. Merest v. Harvey, 1 Marsh. 139; 5 Taunt. 442.]

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)(3) Thus, if a meadow be 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 plaintff 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 seized jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the *determination of their respective interests, hold over and continue in [ *211 ] possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; 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. 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 annual 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 he afterwards neglect to carry that notice into due execution.

(d) Dyer, 285. 2 Roll, Abr. 549.

(e) Cro. Eliz. 421.

(f) 2 Roll. Abr. 553.

(g) 11 Rep. 5.

(3) [As to the possession and title essential, see Chitty on Pl. 159 to 166. An exclusive in terest in the crop, without an interest in the soil, is sufficient to sustain an action of trespass. 3 Burr. 1826; Bro. Abr. Tres. 273; Bull. N. P. 85. But possession, actual or constructive, must be proved. 1 East, 244; 4 Taunt. 547; 6 East, 602. Trespass will not lie for entering a pew or seat, because the plaintiff have not the exclusive possession, the possession of the church being in the parson. 1 T. R. 430. If trees are excepted in the lease, the land whereon they grow is necessarily excepted also, consequently the landlord may maintain trespass for breaking his close, if the tenant cut down the trees. Selw. N. P. 1237. Where two fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not. If there is a ditch on each side, the ownership of the hedge must be proved by acts of ownership. Id. 1288. A person may cut his ditch to the edge of his own land, but if he goes beyond he is a trespasser on his neighbor's land, though he may cut as wide as he pleases on his own land. 3 Taunt. 138.]

To entitle one to maintain trespass he must have possession: Mather v. Ministers, &c.; 3 S. and R. 509; Wheeler v. Hotchkiss, 10 Conn. 225; unless the lands are wild or vacant, in which case the party having title has sufficient constructive possession for the purposes of this suit. Goodrich v. Hathaway, 1 Vt. 485; Van Rensselaer v. Van Rensselaer, 9 Johns. 377. Sce Gardner v. Heart, 1 N. Y. 528. In other cases it is not necessary for the plaintiff to show title; but every unwarrantable entry upon a peaceable possession is a trespass. Palmer v. Aldridge, 16 Barb. 131; Wells v. Howell, 19 Johns. 385; Brown v. McCloud, 3 Head. 280. And one who uses the highway for purposes other than those for which the public easement exists, is liable in trespass to the owner of the fee. Avery v. Maxwell, 4 N. H. 36; Mayhew v. Norton, 17 Pick. 357; Adams v. Rivers, 11 Barb. 390. If lands are occupied by a tenant, he, and not the lessor, must bring trespass against a stranger for unlawful disturbance of the possession. Campbell v. Arnoid, 1 Johns. 511.

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 neighbor'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 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, &c.: (h) for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the *defendant or his beasts in coming upon the land be proved, it is an act of [*212] 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) (4)

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 professes the keeping such inn or public house, he thereby gives a general license to any person to enter his doors. So a 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 after the harvest, without *being guilty of trespass: (m) which humane provision seems borrowed from the Mosaical law. (n) (5) [*213]

(4) [The latter mode prevails in modern practice, and the form of declaring with a continuando has grown obsolete. Under the statement that the defendant, on a day named, and on divers other days and times between that day and the commencement of the suit, trespassed, the plaintiff may prove any number of trespasses within those limits, though none are specified except those on the earliest day named. 1 Stark. R. 351.]

(5) [Two actions of trespass have been brought in the common pleas against gleaners, with an intent to try the general question, viz.: whether such a right existed. In the first, the defendant pleaded that he, being a poor, necessitous, and indigent person, entered the plaintiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inhabitant legally settled within the parish: to the plea in each case there was a general demurrer. Mr. J. Gould delivered a learned judgment in favor of gleaning, but the other three judges were clearly of opinion, that his claim had no foundation in law; that the only authority to support it was an extrajudicial dictum of Lord Hale; that it was a practice incompatible with the exclusive enjoyment of property, and was productive of vagrancy, and many mischievous consequences. 1 H. Bl. Rep. 51, 53, n. (a). ]