CHAPTER THE TWELFTH.

OF TRESPASS.

IN the two preceding chapters we have confidered fuch

injuries to real property, as confifted in an oufter, or amotion of the poffeffion. Those which remain to be difcuffed are fuch as may be offered to a man's real property without any amotion from it.

THE fecond fpecies 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, fignifies any tranfgreffion or offence against the law of nature, of fociety, or of the country in which we live; whether it relates to a man's perfon, or his property. Therefore beating another is a trefpafs; for which (as we have formerly feen) an action of trefpafs vi et armis in affault and battery will lie; taking or detaining a man's gcods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and converfion, is given by the law: fo alfo nonperformance of promises or undertakings in a trespass, upon which an action of trespass on the cafe in affumpfit is grounded: and, in general, any misfeafance or act of one man, whereby another is injuriously treated or damnified, is a tranfgreffion or trespass in its largest sense; for which we have already feen that, whenever the act itself is directly, and immediately injurious to the perfon or property of another, and therefore neceffarily accompanied with fome force, an [ 299 ] action of trefpafs vi et armis will lie; but, if the injury is only confequential, a special action of trespass on the cafe may be brought (1).

a

• See pag. 123.

(1) The diftinctions beween actions of trefpafs vi et armis for an immediate injury, and actions of trefpafs upon the case for å

confe

BOOK III. BUT in the limited and confined fenfe, in which we are at prefent to confider it, it fignifies no more than an entry on another man's ground without a lawful authority, and doing fome damage, however inconfiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a neceffary confequence, that this right must be exclufive; that is, that the owner may retain to himself the fole ufe and occupation of his foil: every entry therefore thereon without the owner's leave, and efpecially if contrary to his exprefs order, is a trefpafs or tranfgreffion. The Roman laws feem to have made a direct prohibition neceffary, in order to conftitute this injury: “ qui alienum fundum ingreditur, poteft a domino, fi is praeviderit, "prohiberi ne ingrediatur." But the law of England, justly

b Inft. 2. 1. 12.

confequential damage, are frequently very delicate; see the subject much confidered in 2 Bl. Rep. 892, in a cafe where an action of trespass vi et armis was brought against the defendant for throwing a lighted fquib in a public market, which fell upon a stall, the owner of which, to defend himself and his goods, took it and up, threw it to another part of the market, where it ftruck the plaintiff and put out his eye.

The queftion was much difcuffed, whether the perfon injured ought to have brought an action of trefpafs vi et armis, or an action upon the cafe; and one of the four judges ftrenuously con. tended that it ought to have been an action upon the cafe. But I fhould humbly conceive, that the question was more properly this, viz, whether an action of trefpafs vi et armis lay against the ori ginal or the intermediate thrower, or whether the act of the fecond thrower was involuntary, (which feems to have been the opinion of the jury,) or wilful and mifchievous, and if fo, whether he alone ought not to have been anfwerable for the confequences. For if A throws a ftone at B, which after it lies' quietly at his foot, B takes up and throws again at C, it is prefumed that C has his action against B only; but if it is thrown at B, and B, by warding it off 1 from himself, gives it a different direction, in confequence of which it ftrikes C, in that cafe, it is wholly the act of A, and B must be confidered merely as an inanimate object, which may chance to divert its courfe.

5

confidering

confidering 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 fome very particular cases,) as an injury or wrong, for satis faction of which an action of trefpafs will lie; but determines the quantum of that fatisfaction, by confidering how far the offence was wilful or inadvertent, and by eftimating the value of the actual damage sustained.

EVERY unwarrantable entry on another's foil the law entitles a trefpafs by breaking his close; the words of the writ of trefpafs commanding the defendant to fhew caufe quare claufum querentis fregit. For every man's land is in the eye of the law inclosed and fet apart from his neighbour's: and that either by a vifible and material fence, as one field is divided from another by a hedge; or, by any ideal invifible boundary, exifting only in the contemplation of law, as when one man's [210] land adjoins to another's in the fame field. And every fuch entry or breach of a man's clofe carries neceffarily along with it fome damage or other: for, if no other special lofs can be affigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruifing his herbage.

ONE must have a property (either abfolute or temporary) in the foil, and actual poffeffion by entry, to be able to maintain an action of trefpafs: or, at leaft, it is requifite that the party have a leafe and poffeflion of the vesture and herbage of the land. Thus if a meadow be divided annually among the parishioners by lot, then, after each perfon's feveral portion is allotted, they may be respectively capable of maintain. ing an action for the breach of their several closes: for they have an exclufive intereft and freehold therein for the time. But before entry and actual poffeffion, one cannot maintain an action of trefpafs, though he hath the freehold in law f And therefore an heir before entry cannot have this action

against an abator: though a diffeisee might have it against the diffeifor, for the injury done by the diffeifin itself, at which time the plaintiff was feifed of the land: but he cannot have it for any act done after the diffeifin, until he hath gained poffeffion 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 poftliminii, supposes the freehold to have all along continued in him. Neither, by the common law, in cafe of an intrufion or deforcement, could the party kept out of poffeffion fue 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 sta tute 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or [311] intereft determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in poffeffion of the lands or tenements, without the confent of the perfon entitled thereto, they are adjudged to be trefpaffers; and any reverfioner or remainder-man, expectant on any life-eftate, may once in every year, by motion to the court of chancery, procure the ceftuy que vie to be produced by the tenant of the land, or may enter thereon in cafe of his refufal or wilful neglect. And by the ftatutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in cafe after the determination of any term of life, lives, or years, any person fhall wilfully hold over the fame, the leffor or reverfioner 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 poffeffion; or elfe double the ufual rent, in cafe the notice of quitting proceeds from the tenant himfelf, having power to determine his leafe, and he afterwards neglects to carry that notice into due execution (2).

A MAN is anfwerable for not only his own trefpafs, but that of his cattle alfo: for, if by his negligent keeping they

ftray 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 muft aufwer in damages. And the law gives the party injured a double remedy in this cafe; by permitting him to diftrein the cattle thus damage feafant, or doing damage, till the owner fhall make him fatisfaction; or elfe by leaving him to the common remedy in foro contentiofo, by action. And the action that lies in either of these cafes of trefpafs committed upon another's land either by a man himfelf or his cattle, is the action of trefpafs vi er armis; whereby a man is called upon to anfwer, quare vi et armis claufum ipfus A. apud B. fregit, et blada ipfius A. ad valentiam centum folidorum ibidem nuper crefcentia cum quibufdam averiis depaftus fuit, conculcavit, et confumpfit, &c.: for the law always couples the idea of force with that of intrufion upon the property of another. And herein, if any unwarrantable act of the [212] defendant or his beafts in coming upon the lands be proved, it is an act of trefpafs for which the plaintiff must recover fome damages; fuch however as the jury fhall think proper to affefs.

In trefpaffes of a permanent nature, where the injury is continually renewed, (as by fpoiling or confuming the herb. age 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 at continuando,) and the plaintiff fhall not be compelled to bring feparate actions for every day's feparate offence. But where the trefpafs is by one or feveral 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 trefpafs 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 .

240,