*2. The writ of quare ejecit infra terminum lieth, by the antient law *207] where the wrong-doer or ejector is not himself in possession of the lands, but another who claims under him. As where a man leaseth lands to another for years, and, after, the lessor or reversioner entereth 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 of 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."

CHAPTER XII.

OF TRESPASS.

*208] *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 s 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 *209] trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.1

when he might be heard to answer the charges forming the ground of dismissal. 1 Bing. 357 8 T. R. 109.-CHITTY.

14 And has now been for some time abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART.

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

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 further, 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.'

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 same [*210 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)

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

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 mischievous, 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 vs. 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 -CHRISTIAN.

2 Trespass for breaking a close is sustainable without previous notice; but it is most prudent to serve a notice and proceed for a subsequent trespass, upon which the judge on the trial will usually certify that the trespass was wilful, which will entitle plaintiff to full costs, though the damages be under 40s. 8 & 9 W. III. c. 11, s. 4. 3 Wils. 325 6 T. R. 11. 7 T. R. 449. 3 East, 405.-CHITTY.

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 vs. Harvey, 1 Marsh. 139. 5 Taunt. 442.-CHITTY.

4 By the term "property either absolute or temporary" the student might be led to suppose that this action is only maintainable by one who is lawful owner or lawfully in VOL. IL-10

145

least, it is requisite that the party have a lease and possession of the vesture and herbage of the land. (d) 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 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 wrong-doer 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 determination of their respective interests, hold over and *211] continue in 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

(d) Dyer, 285. 2 Roll. Abr. 549.
(0) Cro. Eliz. 421.

() 2 Roli. Abr. 553.
() 11 Rep. 5.

possession. But the action is founded on possession, not on title. In his original complaint, the plaintiff relies only on his possession, and discloses no title; nor will he be bound to prove any, unless the defendant destroys the presumption arising from his possession by showing a title prima facie good in himself. Even if it should appear clearly that the plaintiff's possession was wrongful, he will recover damages in case the defendant is also a wrong-doer and has no title to rely on. Graham vs. Peat, 1 East, 244 Catteris vs. Cowper, 4 Taunt. 547.-COLERidge.

Where no one is in possession,-the land being vacant and uncultivated, the party having the title or right of possession may maintain trespass. Gillespie vs. Dew, 1 Stew. 229. Aiken vs. Buck, 1 Wend. 466. Goodrich vs. Hathaway, 1 Verm. 485. It is settled that the owner of wild and uncultivated land is to be deemed in possession so as to maintain trespass until an adverse possession is clearly made out. Mather vs. Trinity Church, 3 Serg. & Rawle, 513. Cook vs. Foster, 2 Gilman, 652. Smith vs. Yell, 3 English, 470. "In a mere uncultivated country, in wild and impenetrable woods, in the sullen and solitary haunts of beasts of prey, what notoriety could an entry, a gathering of a twig or an acorn, convey to civilized man at the distance of hundreds of miles? The reason of the rule could not apply to such a state of things; and cessante ratione, cessat ipsa lex. We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seisin thereof in deed to the grantee: it attaches to him all the legal remedies incident to the estate." Story, J., in Green vs. Liter et al, 8 Cranch, 249.-SHARSWOOD. 'As to the possession and title essential, see Chitty on Pl. 159 to 166. An exclusive interest in the crop, without an interest in the soil, is sufficient to sustain an action of trespass, (3 Burr. 1826. Bro. Abr. Tresp. 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 has 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. 1287. 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. Ib. 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 neighbour's land, though he may cut as wide as he pleases on his own land. 3 Taunt. 138.-CHITTY.

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 afterwards neglects to carry that notice into due execution."

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 thas 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 trespass for which the plaintiff must recover some damages; such, however, as the jury shall think proper to assess.

[*212

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)'

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.(1) Also, it hath been said that, by the common law and custom of England, the poor are allowed to enter and glean upon (*) Registr. 94.

(2 Roll. Abr. 545. Lord Raym. 240.

(*) Salk. 638, 639. Lord Raym. 823. 7 Mod. 152.
(3) 8 Rep. 146.

"See 2 book, p. 151. Upon these statutes it has been determined that it is not necessary that the notice from the tenant should be in writing; but notice from the landlord to the tenant must. Burr. 1603. Bla. Rep. 533. And the 4 Geo. II. extends to cases where the tenant holds over fraudulently and perversely only, not where he continues his possession under a bona fide claim of right. 5 Esp. 203. See also ib. 215. The action for double rent may be maintained after recovery in ejectment. 9 East, 310.-CHITTY. '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.CHITTY.

another's ground after the harvest without *being guilty of trespass :(m) *213] which humane provision seems borrowed from the Mosaical law.(n)0 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.(0) 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 his first entry, and make the whole a trespass.(g) 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 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 pur pose 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 *214] hunting of such noxious animals for the 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

) Gilb. Ev. 253. Trials per pais, ch. 15, p. 438.
Levit. xix. 9, and xxiii. 22. Deut. xxiv. 19, &c.

Cro. Jac. 321.

(P) Finch, L. 47. Cro. Jac. 148.

() 2 Roll. Abr. 561.

(*) 8 Rep. 147.
() Finch, L. 47.
(*) 8 Rep. 146.
(") Cro. Jac. 321.

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 favour of gleaning, but the other three judges were clearly of opinion that this claim had no foundation in law; that the only authority to support it was an extra-judicial 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, 52, n. (a.)—CHITTY.

It has been determined that it is lawful to follow a fox with horses and hounds over another's grounds, if no more damage be done than is necessary for the destruction of the animal by such a pursuit, (1 T. R. 338;) but, in the Earl of Essex vs. Capel, Hertford Assizes, A.D. 1809, 2 Chitty Game L. 1381, a different doctrine was laid down by lord Ellenborough, who 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." The jury, under his ordship's direction, found a verdict for the plaintiff. And see 1 Stark. 351 CHITTY