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 law seems to have made a direct prohibition necessary, in order to constitute this injury: qui alienum fundum ingreditur, potest a domino, si is prævideret, prohiberi ne ingrediatur" (b). But the law of England, justly considering that serious inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much further, and has treated every entry upon another's land (unless by the [* 282] owner's leave, or in some very particular cases), as an injury or wrong, for satisfaction of which an action of trespass will lie; though a jury in determining the proper quantum of that satisfaction, will consider how far the offence was wilful or inadvertent, and will estimate 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 old 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 another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage, as the treading down and bruising his herbage (c).

A person must have actual possession of land to be able to maintain such an action of trespass; or at least, it is requisite that he have a possession of the vesture and herbage of the land (d). (567) Thus if a meadow be divided annu

(b) Inst. 2, 1, 12.

(c) F. N. B. 87, 88.

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

Trespass will also lie by one entitled to a grant of underwood (Cro. Eliz. 413; Moor, 355, pl. 488), to an exclusive right of digging turves (Wilson v. Mackreth, 3 Burr. 1824), or

to the exclusive enjoyment of a crop growing on the land (Crosby v. Wadsworth, 6 East, 602). And where the trespass is committed by a stranger, he may be sued by one who has a mere possession, whether founded on a good title or not. (Matson v. Cook, 4 Bing. N. C. 392; Holmes v. Newlands, 11 Ad. & E. 52.)

(567) In American law the general rule is, that to maintain trespass, quare clausum, the plaintiff must have actual or constructive possession. Poole v. Mitchell, 1 Hill (S. C.), 404; Wheeler v. Hotchkiss, 10 Conn. 225; Goodrich v. Hathaway, 1 Vt. 485; Van Rensselaer v. Van Rensselaer, 9 Johns. 377; Phillips v. DeGroat, 2 Lans. 192; Savage v. Holyoke, 59 Mẻ. 345. Where the premises are vacant, the person having the legal title has the constructive possession, and the right of action is in him. Id.; Gardner v. Heart, 1 N. Y. (1 Comst.) 528. But he cannot bring trespass against one having actual possession. Vance v. Beatty, 4 Rich. (S. C.) 104; Cohoon v. Simmons, 7 Ired. (N. C.) 189; Stean v. Anderson, 4 Harr. (Del.) 209. It is held, however, that where a person is in possession of land under a void title, and another, having a valid title, peaceably enters and takes possession, the latter is not a trespasser. Sharon v. Wooldrick, 18 Minn. 355.

Where lands are occupied by a tenant, he, and not the lessor, is the proper person to bring trespass against a stranger for ar unlawful disturbance of the possession. Campbell v. Arnold, 1 Johns. 511.

A stranger who, without authority from the owner of premises, enters thereon for a lawful purpose, by invitation of one who is lawfully there by license of the owner, is not a trespasser. Kelly v. Tilton, 2 Abb. Ct. App. 495. So, in trespass quare clausum, the defendant may prove, in mitigation of damages, that the trespass was not willful and malicious; as that he entered to survey off a portion of the premises sold for quit-rents. Machin v. Geortner, 14 Wend. 239.

VOL. II.-28

ally among the parishioners by lot, then after each person's several portion is allotted, he may be capable of maintaining an action for the breach of his close (e) for he has an exclusive interest therein for the time. But before entry and actual possession, a person cannot maintain an [* 283 ] action of trespass, though he has the freehold in law (f). And therefore an heir before entry upon land cannot have this action, though a disseissee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land: and the customary heir of a copyholder may after entry sue for trespasses which had been committed previously thereto, for after entry his title relates back (g).

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 him satisfaction: or else by leaving him to the common remedy in foro contentioso, by action. (568) Indeed, an action lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle; wherein a man was according to the ancient form 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 has always coupled the idea of force with that of intrusion upon the property of another. And in the action supposed 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 as the jury shall think proper to assess (i).

* In some cases trespass is justifiable; or rather entry on another's [* 284] land or into his house shall not 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 to keep such inn or public-house, he thereby gives a general licence to any person properly conducting himself to enter his doors. (569) So a landlord may justify entering to distrain for rent; a com

19.

(e) Welden v. Bridgewater, Cro. Eliz. 421. (f)2 Roll. Abr. 553.

(g) Barnett v. Earl of Guildford, 11 Exch.

(h) Registr. 94.

(2) As to the liability of the owner of a dog in trespass for its unauthorised entry on to the land of another, see Read v. Edwards, 17 C. B. N. S. 245.

(568) A person finding horses trespassing on his land may turn them into the highway, and is not liable, though they may be lost in consequence. Humphrey v. Douglass, 10 Vt. 71. See Crane v. Mason, Wright (Ohio), 333.

(569) Entering a building or dwelling-house without license, express or implied, is a trespass, and entitles the owner to nominal damages. Adams v. Freeman, 12 Johns. 408; Brown v. Perkins, 1 Allen (Mass.), 89. Keeping an inn amounts to a general license; and it has been held that familiar intimacy between families may be evidence of a general license. Adams v. Freeman, 12 Johns. 408; Martin v. Houghton, 45 Barb. 238; S. C., 1 Abb. N. S. 339; 31 How. 82.

moner to attend his cattle, commoning on another's land; and a reversioner, to see if any waste be committed on the estate (k). Where, however, a man having lawfully entered on the property of another misdemeans himself, or makes an ill use of the authority with which the law has entrusted him, he shall be accounted a trespasser ab initio (1): 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 will affect and have relation back even to his first entry, and make the whole a trespass (m). But a bare non-feasance, 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 may have an [*285] action of debt against him (n). So 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 (0).

A man may also justify in an action of trespass, on account of the freehold, and right of entry upon the land being in himself; and as such a defence brings the title of the estate in question, this is one of the ways devised, since the abolition of real actions, for trying the property to an estate; though it is not so usual as that by ejectment. Ejectment, being a mixed action, not only gives damages for the ejection, but also possession of the land; whereas in trespass, which is merely a personal action, nothing can be recovered but damages for the wrong committed (p).

Nuisance.

Another injury to a man's lands and tenements, may be by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that works hurt, inconvenience, or damage. And nuisances are of two kinds: a public or common nuisance, which affects the public, and is an annoyance to all the queen's subjects: for which reason we must refer *it [*286] to the class of public wrongs (q): and a private nuisance, which is for our present consideration. We proceed, therefore, to mark out the several kinds of nuisances, and their ordinary remedies.

(k) There is no right, however, to enter on the land of another for the purpose of glean ing there: Steel v. Houghton, 1 H. Bla. 51. As to hunting, in Earl of Essex v. Capel, cited, Chitty, Game Laws, 2nd ed. 31, Lord Ellenborough said, "these pleasures are to be taken only when there is the consent of those who are likely to be injured by them, but they must be necessarily subservient to the consent of others. There may be such a public nuisance by a noxious animal as may justify the running him to his earth, but then you cannot justify the digging for him afterwards; that has been ascertained and settled to be law: but even if an animal may be pursued with dogs, it does not follow that fifty or sixty people have therefore a right to follow the dogs, and trespass on other people's lands." See, also, Hume v. Oldacre, 1 Stark. 351.

(1) The Six Carpenters' Case, 8 Rep. 146a. (m) 2 Roll. Abr. 561.

(n) The Six Carpenters' Case, supra. (0) 8 Rep. 146.

See Leg. Max., 4th ed., pp. 296, et seq., where many other cases illustrating the text are cited.

(p) The questions-whether an action of trespass to land was brought for the purpose of trying a right, and whether the trespass was wilful and malicious may be very material as regards the costs.

See stat. 3 & 4 Vict. c. 24, s. 2, which enacts that if the plaintiff, in an action of trespass, or on the case, shall recover by the verdict of a jury less damages than forty shillings, he shall not be entitled to any costs whatever, unless the judge or presiding officer before whom the verdict is obtained, shall immediately afterwards certify on the back of the record, that the action was brought to try a right, besides the mere right to recover damages for the trespass or grievance complained of, or that the trespass or grievance was wilful and malicious. See, also, id. s. 3; 30 & 31 Vict. c. 142, s. 5; 8 & 9 Will. 3, c. 1, s. 3. (q) Post, vol. iv.

In discussing the several kinds of nuisances, we will consider, I. Such nuisances as may affect a man's corporeal, and II. Those which may damage his incorporeal hereditaments.

I. To corporeal

I. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nuisance, for which an action will lie, even without proof of special damage (r). We hereditaments. have seen, likewise, in our preceding Volume, that to erect a house or other building so near to mine, that it obstructs my ancient lights and windows, is a nuisance; though if the windows be ancient, that is, have not subsisted for so long a time without interruption as to give a prescriptive right, and there be no covenant or contract affecting the matter, there is no injury done. For my neighbour is as much entitled to build a new edifice upon his ground as I am upon mine; since every man may erect what he pleases upon the upright or perpendicular of his own soil, so as not to prejudice what has long been enjoyed by another; and it was my folly to build so near another's ground as to run the risk of being thus incommoded. (570) And depriving one of a mere matter of pleasure, as of a fine prospect by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance (8).

If we define a private nuisance, such as here under notice, to be any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another (t), the jury, on the trial of an action for nuisance, will have to deter[* 287] mine whether the act complained of did cause * annoyance, in a substantial degree, to the complainant; they will not have to consider merely whether the act complained of was done in a place convenient for the purpose (u). And whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the acts complained of had occurred, the annoyance is sufficiently great to amount to a nuisance at law, according to the idea above given of it, an action will lie against the person who caused or erected the nuisance, whatever the locality may be (x). If a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this may be a nuisance, inasmuch as it tends to deprive him of the use and benefit of his house (y). A like injury may be, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in subservience to the rule, "sic utere tuo, ut alienum non lædas" (z).

On the one hand, it has long been settled that a man may, without being liable to an action, exercise a lawful trade, as that of a butcher, a brewer, or the like, notwithstanding it be carried on so near the house of another as to be an annoyance to him in rendering his residence there less delectable or agreeable, provided the trade be so conducted that it does not cause what amounts, in point of law, to a nuisance to the neighbouring house (a).

Fay v. Prentice, 1 C. B. 828.

Aldred's Case, 9 Rep. 58.

(t) Finch, L. 188.

(u) Cavey v. Ledbitter, 13 C. B. N. S. 470.

(x) Bamford v. Turnley, 3 B. & S. 62.

(y) Aldred's Case, 9 Rep. 59.

(2) Leg. Max., 4th ed., p. 357.
(a) Bamford v. Turnley, 3 B. & S. 62.

(570) See ante, note 209.

On the other hand, it is clear that a person using a limekiln, or other works, which emit noxious vapours, is not justifiable in doing an actionable injury to another; and that any place where such an operation is carried on, so that it does occasion an actionable injury to another, is *not, in the [*288] meaning of the law, a convenient place in which to carry on the business (b). Further, if a man erects smelting-works for lead so near the land of another, that the vapour and smoke kill his corn and grass, and damage his cattle therein, this will be held to constitute a nuisance (c). And, generally, if one does any such act, in itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nuisance: and it is incumbent on the person carrying on such a noxious business to find some other place in which to do that act, where it will be less offensive.

Here, however, a distinction should be noticed between an action brought for a nuisance upon the ground that it produces material damage to property, and an action brought for a nuisance upon the ground that the thing alleged to be a nuisance is productive of personal discomfort; an answer to the question whether that which interferes with one's personal convenience and enjoyment or quiet, which discomposes or injuriously affects one's senses or nerves, may be denominated a nuisance, will depend greatly on the circumstance where the thing complained of actually occurs. If a man lives in a town, of necessity he should subject himself to the consequences of those operations of business which may be carried on in his immediate locality, and are necessary for trade and commerce, also for the enjoyment of property and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But when a business is carried on by one person in the neighbourhood of another, and the result of that business is a material injury, there arises a different * consideration; and the above [* 289] rule as to the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours would not apply under circumstances the immediate result of which is sensible damage to the value of the property (d). (571)

(b) Per Mellor, J., adopted by Lord Cranworth, 11 H. L. Cas. 652.

(c) 1 Roll. Abr. 89.

(d) Per Lord Westbury, C., St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642.

(571) As to what constitutes an actionable nuisance it is said, that if the thing complained of causes hurt, inconvenience, annoyance or damage, even in the least degree, the person creating it must be answerable for consequences. No matter how small the damage the person sustaining it will have a right of action. But there must be some damage in fact, not merely in imagination. Cooper v. Hall, 5 Ohio, 320. See Garrison v. State, 14 Ind. 287; Palmer v. Mulligan, 3 Caines, 307. And regard should be had to the notions of comfort and convenience generally entertained by persons of ordinary tastes and susceptibilities. What such persons would not regard as an inconvenience, materially interfering with their physical comfort, may be properly attributed, when alleged to be a nuisance, to the fancy or fastidious taste of the party. On the other hand, the charge of a nuisance, if it be of a thing offensive to persons generally, cannot be escaped by showing that to some persons it is not at all unpleasant or disagreeable. Columbus Gas, etc., v. Freeland, 12 Ohio St. 392, 399.