CHAP. XXXIX. TRESPASS. I. In what Cases an Action of Trespass may be maintained. II. Where Trespass cannot be maintained. III. Of the Declaration. IV. Of the Pleadings, and herein of the new Rules. 1. Of the Plea of Not Guilty. 2. Accord and Satisfaction. 3. Liberum Tenementum. 4. Estoppel. 5. License. 6. Process. 7. Right of Common. 8. Right of Way. 9. Tender of Amends. V. Evidence. VI. Damages-Costs. I. In what Cases an Action of Trespass may be maintained. THE land of every owner or occupier is inclosed and set apart from that of his neighbour, either by a visible or tangible fence, as one field is separated from another by a hedge, wall, &c. or by an ideal invisible boundary, existing only in the contemplation of law, as when the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close. The form of action. which the law has prescribed for this injury is an action of trespass vi et armis quare clausum fregit, in which the plaintiff may recover a compensation in damages for the injury sustained. Although the words of the writ are quare clausum fregit, yet it has been adjudged, in many instances where the plaintiff had not an interest in the soil, but an interest in the profits only, that trespass may be maintained, and this form pursued. Hence it was holden, that the grantee or patentee of the king de herbagio forestæ, might maintain trespass against any person who consumed or destroyed the grass, and that the writ should be quare clausum fregit. So where plaintiff is entitled to the vesture of land, that is, corn, grass, underwood, and the like. So where plaintiff had an exclusive (1) right of cutting turves in a moss: although the manor in which the moss was situate belonged to anotherd. So if it is agreed between J. S., and the owner of the soil, that J. S. shall plough and sow the ground, and that in consideration thereof, J. S. shall give the owner of the soil half the crop, J. S. may maintain trespass for treading down the corn (2). So if a meadow be divided annually among certain persons by lot, then after the several portion of each person is allotted, each is capable of maintaining an action of trespass quare clausum fregit; for each has an exclusive interest for the timef. The plaintiff, on the 6th of June, 18048, agreed with the defendant for the purchase of a standing crop of mowing grass, then growing in a close of defendant's. The grass was to be mowed, and made into hay, by the plaintiff; but the time at which the mowing was to begin was not fixed. Possession a Dyer. 285. b. pl. 40. b 1 Inst. 4. b. c Moor, 355. pl. 483. d Wilson v. Mackreth, 3 Burr. 1824. e Welsh v. Hall, per Powell, J. at Wells, 1700. Salk. MSS. Bull. N. P. 85. f See Cro. Eliz. 421. g Crosby v. Wadsworth, 6 East, 602. (1) To maintain trespass, it is essential that the plaintiff should have exclusive possession at the time of the injury committed. Hence trespass will not lie for entering into a pew or seat in a church, because the plaintiff has not the exclusive possession, the possession of the church being in the parson." Per Buller, J. 1 T. R. 430. The proper form of action for this injury is an action of trespass on the case; to support which, the plaintiff must prove a right, either by a faculty or by prescription, which supposes a faculty having been formerly granted. For the law on this subject, see ante, p. 1136. (2) In such case the owner is not jointly concerned in the growing corn, but is to have half after it is reaped, by way of rent, which may be of other things than money: although, in 1 Inst. 142, it is said, it cannot be of the profits themselves. But that, as it seems, must be understood of the natural profits. Bull. N. P. 85. of the close was retained by the defendant. Before the plaintiff had done any act towards carrying the agreement into effect, the defendant refused to complete the agreement, and sold the grass to another person, whom he directed to cut and carry away the same. Trespass quare clausum fregit was brought, stating in the declaration that the close was in the possession of the plaintiff. Lord Ellenborough, C. J. said, that as the plaintiff appeared to have been entitled (if entitled at all under the agreement stated,) to the exclusive enjoyment of the crop growing on the land, during the proper period of its full growth, and until it was cut and carried away, he might in respect of such exclusive right, maintain trespass against any person doing the acts complained of, according to the authority of 1 Inst. 4 b. Fitz. Abr. Tres. 149., and Bro. Abr. Tres. 273, and Wilson v. Mackreth, 3 Burr. 1826. But the court were of opinion, that as the agreement was by parol, it was competently discharged by parol while it remained executory, and that on this ground the plaintiff was not entitled to recover. Where trees are excepted in a lease, the land on which they grow is necessarily excepted also; consequently if the tenant cut down the trees, the landlord may maintain trespass for breaking his close and cutting down the treesh. The property in bushes is in the tenant, even where they are cut down by a stranger. If a tree grows near the confines of the land of two parties, so that the roots extend into the soil of each, the propertyk in the tree belongs to the owner of that land in which the tree was first sown or planted. Where two adjacent 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 are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership'. The rule about ditching is thism: a person, making a ditch, cannot cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land; he is of course bound to throw the soil which he digs out, upon his own land, and often, if he likes it, he plants a hedge on the top of it; therefore, if he afterwards cut beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser: no rule about h Rolls v. Rock, Somerset, Summ. Ass. 2 Geo. 2. per Probyn, J. MSS. i Berriman v. Peacock, 9 Bingh. 384. k Holder v. Coates, 1 M. & Malk. 112. per Littledale, J. 1 Per Bayley, J. in Guy v. West, Somerset Summ. Ass. 1808. m Per Lawrence, J. in Vowles v. Miller, 3 Taunt. 138. four feet and eight feet has any thing to do with it (3). He may cut the thing as much wider as he will, if he enlarges it into his own land. The rule, that waste land near a highway is to be presumed primâ facie to belong to the owner of the land next adjoining, is not confined to a case where the owner of that land is a freeholder, but extends equally to cases where the owner is a copyholder" but in either case evidence may be given to rebut the presumption. The common user of a wall separating adjoining lands, belonging to different owners, is primâ facie evidence that the wall and the land on which it stands belong to the owners of adjoining lands in equal moieties as tenants in common. Secus, where the quantity of land, which each party contributes P is known, and the wall built at the joint expense of the two. The action of trespass quare clausum fregit is a local action'. Hence, where trespass was brought for entering the plaintiff's house in Canada, it was holden that the action could not be maintained; Buller, J. observing, "it is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions; it is sufficient for the courts, that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here, which are in their nature transitory, though arising out of a transaction abroad, but not such as are in their nature local." The action of trespass vi et armis is termed a possessory action, to distinguish it from those actions in which the plaintiff must shew a title. Being founded on an injury to the possession, it is essential that the plaintiff should be in the actual possession of the close at the time when the injury is committed; but, as against a stranger or wrong-doer, it is immaterial whether such possession be founded on a good title or not. Even a tortious possession will support trespass against a wrong-doer. The plaintiff de n Doe d. Pring v. Pearsey, 7 B. & C. 304. See Doe d. Barrett v. Kemp, 2 Bingh. N. C. 102, ante, p. 755. o Cubitt v. Porter, 8 B. & C. 257. Wiltshire v. Sidford, ib. 259, n. p Matts v. Hawkins, 5 Taunt. 20. r q Doulson v. Matthews and another, 4 T. R. 503. But see stat. 3 & 4 W. 4. c. 42. s. 22. ante, p. 499. s See Dent v. Oliver, Cro. Jac. 123. (3) It had been contended, that the party to whom the hedge and ditch belonged, was entitled at common law to have a width of eight feet, as the reasonable width for the base of his bank and the area of his ditch together. clared in trespass upon his possession; defendant made title, and gave colour to the plaintiff; plaintiff replied de injuria suá propria, and traversed the title set out by the defendant; and upon demurrer, on the authority of Goslin v. Williams, P. 5 Geo. 1., the court held this a good replication; for it lays the defendant's title out of the case, and then it stands upon the plaintiff's possession, which is enough against a wrong-doer, and the plaintiff need not reply a title. In like manner it was holden", that plaintiff in possession of glebe land under a lease, void by stat. 13 Eliz. c. 20, by reason of the rector's non-residence, might maintain trespass against a wrong-doer. By induction the parson is put into possession of a part for the whole, and may maintain an action for a trespass on the glebe land, although he has not taken actual possession of it. The contractors for making a navigable canal having, with the permission of the owner of the soil, erected a dam of earth and wood upon his close, across a stream there, for the purpose of completing their work, have a possession sufficient to entitle themy to maintain trespass against a wrong-doer. Where wood-lands, and the timber thereon, belonged to the crown, and the plaintiff paid a nominal rent to the crown for the privilege of shooting the game, and it appeared that a person, by leave from him, cut and took away the grass from the sides; it was holden, that although he took no legal estate from the crown for non-compliance with the stat. I Ann. c. 7. s. 5., and could not therefore have maintained ejectment, nor even have retained possession as against the crown; yet that he might maintain trespass against a party having no title, and a wrong-doer ; held also, that payment of the rent, the exercise of the privilege of shooting over the land, and the cutting of the grass by the plaintiff's permission was sufficient evidence to go to a jury, and for them to find that he was in the actual possession of all but the trees. It seems that the plaintiff could not have been treated by the crown as an intruder. If a man be disseised, after his re-entry he may have an action of trespass against the disseisor for any trespass done by him after the disseisina; for by his re-entry his possession is restored ab initio. If he who has the right to land enters, he thereby acquires the lawful possession, and may maintain trespass against any person who being in possession at the time of his b t Cary v. Holt, Str. 1238. 11 East, z Harper v. Charlesworth, 4 B. & C. 70, n. u Graham v. Peat, 1 East, 244. x Bulwer v. Bulwer, 2 B. & A. 470. y Dyson v. Collick, 5 B. & A. 600. 574. a 2 Rol. Abr. 554. pl. 5. b Butcher v. Butcher, 7 B. & C. 399. 1 |