[Book III This Action of Ejectment Is, However, Rendered a Very Easy and Expeditious Remedy to Landlords Whose Tenants Are in Arrear, by Statute 4 Geo

206 TRESPASS TO REAL PROPERTY. [Book III 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 bath 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 [*207] the wrongdoer 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 fdr life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firmce 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 defore- ing, 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 le acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse. (9)

CHAPTER XIL

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 under- takings 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,

(b) F. N. B. 198. (a) See page 1M8.

(9) It was abolished by statute 3 and 4 Win. IV, c. 27, s. 36. Chap. 12o.] TRESPASS TO REAL PROPERTY. *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) 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 alienumfundum ingreditur,potest a domino, si is prceviderit,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 contem- [*210] plation 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 tread- ing down and bruising his herbage.(c)(2) (b) Ist. 2, 1, 12. (e) F. N. B. 87, 88.

(1) [See these distinctions fully considered, 1 Chitty on P1. 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 sub- ject much considered in 2 Bi. Rep. 892. In a case where an action of trespass viet 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 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 v. Bray, 8 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 sub- ject of an action of trespass vi et avmis 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 'ircumstances of aggravation and insult on the part of the defendant. Merest v. Harvey, 1 Marsh. 139 ; 5 Taunt. 442.] 210 TRESPASS TO REAL PROPERTY. [Book III.

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 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 just postlininii,supposes the freehold to have all along con- tinued in him.(g) Neither, by the common law, in case of an intrusion or de- foreement, 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 seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the [*211] *determination of their respective interests, hold over and 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 re- mainder-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 neglects 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 P1. 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. 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 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 &iose,if the tenant cut down the trees. Selw. N. P. 1287. Where two fields are sepa- rated 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 Rennselaer v. Van Rensselaer, 9 Johns. 377. See 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. 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. Arnold, 1 Johns. 511. 134 Chap. 12.] TRESPASS TO REAL PROPERTY. 211

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 Bfregit, 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 [*21. his beasts in coming upon the land be proved, it is an act of trespass 2] 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 defeiidant's cattle), the declaration may allege the injury to have been committed by continuationfrom 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.(1) 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) (A) Registr. 94. (i) 2 Roll. Abr. 545. Lord Raym. 240. (k)Salk. 638, 639. Lord Raym. 823. 7 Mod. 152. () 8 Rep. 146. (in) Glib. Ev. 253. Trials per pals, ch. 15, p. 438. () Levit. c. 19, v. 9, and c. 23, v. 22. Dent. c. 24, v. 19, &c.

(4) [The latter mode prevails in modern practice, and the form or 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. B1.Rep. 51, 53, n. (a).] 213 TRESPASS TO REAL PROPERTY. [Book III.

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.(o) (6) 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.(q) But a bare nonfeasance, 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 dis- trained 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 purpose 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 [*214] ?ut of his earth: for though the law warrants the 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 for the ejection, but also possession of the land; whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered but damages for the wrong committed. . In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is(inter alia) enacted by statutes 43 Eliz. c. 6, and 22 and 23 Car. II, c. 9, § 136, that where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages, unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two excep- tions more, which have been made by subsequent statutes. One is by statute 8 and 9 Win. III, c. 11, which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs. Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty shil- [*215] lings, where the intent of the defendant plainly appears to *be to harass and distress the plaintiff. The other exception is by statute 4 and 5 W.

(o) Cro. Jac. 321. (p) Finch, L. 47. Cro. Jac. 148. (q) 2 Roll. Abr. 561. (r) 8 Rep. 147. (8) Finch, L. 47. (t) 8 Rep. 146. (u) Cro. Jac. 821.

(6) The law was otherwise declared by Lord Ellenborough in Earl of Essex V.Capel (2 Chit. Game Law, 1381), with the qualification, however, that there may be such a public nuisance by a noxious animal as may justify the running him to his earth. In the case of animals chased for sport or game, merely, it is clear that one cannot justify going upon the lands of another in pursuit without his license. Sutton v. Moody, 1 Ld. Raym. 251; Deane v. Clayton, 7 Taunt. 534; Hume v. Oldacre, 1 Stark. 351. 136 Chap. 13.] NUISANCE. and M. c. 23, which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling, upon another's land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs.(w) (7)

CHAPTER XIII.

OF NUISANCE.

A THIRD species of real injuries to a man's lands and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that work- eth hurt, inconvenience or damage. And nuisances are of two kinds : public or common nuisances, which affect the public, and are an annoyance to all the king's subjects: for which reason we must refer them to the class of public wrongs, or crimes and misdemeanors: and private nuisances, which are the objects of our present consideration, and may be defined, anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.(a) We will therefore, first, mark out the several kinds of nuisances, and then their respective remedies. I. In discussing the several kinds of nuisances, we will consider, first, such nuisances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal. 1. First, as to corporeal inheritances. 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.(b) Likewise to erect a house or other building so near to mine, that it obstructs my ancient *lights and windows, is a nuisance of a similar nature.(c) But in this [*217- latter case it is necessary that the windows be ancient; that is, have sub- * 1 " sisted there a long time without interruption; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground as I have 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.(d) (1) Also 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 unwhole- some,(2) this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house.(e) A like injury is, 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 remote places; for the rule is, "sic utere tuo ut alienum non lcdas:" this therefore is an actionable nuisance.(f) (3) So that the nuisances which affect a man's dwelliny (w) Lord Raym. 149. (a) Finch, L. 188. (b) F. N. B. 184. (c) 9 Rep. 58. (d) Cro. Eliz. 118. Salk. 459. (e) 9 Rep. 58. (f) Cro. Car. 510.

(7) The statute 4 and 5 W. and M. c. 23, is now repealed. The statutes previously men- tioned are also now repealed, and new provisions substituted. (1) Mr. Washburn says there is a strong tendency of the law in America against allowing a right of light and air to be acquired as an easement by mere enjoyment, however long con- tinued. See the cases and statutes referred to by him in 2 Washb. Real Prop. 62,et seq., and in his work on easements. And see note vol. 2, p. 395. (2) See White's Case, 1 Burr. 338; Howard a. Lee, 3 Sandf. 281; Cropsey v. Murphy, 1 Hilt. 126;1 Whalen v. Keith, 35 Mo. 87. (3) See Catlin v. Valentine, 9 Paige, 575; Dargan v. Waddill, 9 Ired. 244; Peck v. Elder, 3 Sandf. 126; Hackney v. State, 8 Ind. 492. VOL. II.-18 137