action is maintainable, for pecuniary compensation, though no actual pecuniary loss can be proved(s). Where a man is entitled to have a stream of water flowing through his land, he may maintain an action for substantial damages for the diversion of the water, though he has not used, and does not want to use, the water(t). So where a tenant makes material alterations in property demised to him, by opening new doors, putting up new buildings, taking down partitions, or changing the form and appearance of a house without the consent of the landlord, he is responsible in damages for infringing upon the proprietary rights of the latter, although the premises may be improved and rendered more valuable by the alterations(u). 17 Every invasion of the plaintiff's right by the fraudulent act of the defendant entitles the plaintiff to some damages. Thus, where an inventor or manufacturer adopts a particular trade-mark, and the defendant imitates it and uses it for the purpose of palming off his own goods as the goods of the plaintiff, the plaintiff is entitled to nominal damages at all events, as his right has been invaded, although no specific damage be proved(c). And there is nothing to prevent the jury from giving more than nominal damages(w). But upon an injunction in equity to restrain the infringement of the plaintiff's trade-mark, some evidence of damage must be given, and proof of the sale by the defendant of an inferior article at a different price is (8) Embrey v. Owen, 6 Exch. 353; 20 Law J., Exch. 212. Rochdale Canal Co. v. King, 14 Q. 135. Webb v. Portland Manuf. Co., 3 Sumner, 197. Bowe. v. Hill, 1 Sc. 526. The removal of the division walls on the ground floor of a building is such a violation of the right of the owner of the upper stories of the building to the support of the walls as will entitle him to maintain an action for the infringement of the right without proof of special damages. McConnel v. Kibbe, 33 Ill. 175. The law presumes damages where a right has been invaded. Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 235. (t) Embrey v. Owen, 6 Exch. 353. Proof of actual injury is not necessary to enable the owner of land through which an ancient water course runs, to maintain an action for nominal damages against one who diverts it above him so as to materially diminish the flow of water by his land. Corning v. Troy Iron and Nail Factory, 40 N. Y. 191, 204. Stowell v. Lincoln, 11 Gray (Mass.), 434. Tyler v. Wilkinson, 4 Mason, 400. Tillotson v. Smith, 32 N. H. 90. Stein v. Burden, 24 Ala. 130. Newhall v. Ireson, 8 Cush. 595. Whipple v. Cumberland Manuf. Co., 2 Story, 661. Blanchard v. Baker, 8 Greenl. 253. Butman v. Hussey, 3 Fairf. 407. The wrongful diversion of a stream of water implies some damage, though merely nominal. Chatfield v. Wilson, 1 Williams (Vt.), 670. But an action of nuisance cannot be maintained for any obstruction or diversion of the water of a stream for domestic, agricultural or manufacturing purposes unless the damages occasioned thereby are real, material and substantial. McElroy v. Goble, 6 Ohio (N. S.), 187. Post, ch. 2, s. 1. (u) Cole v. Green, 1 Lev. 309, and cases cited post, ch. 5, s. 1. (v) Blofield v. Payne, 4 B. & Ad. 410. (w) Rodgers v. Nowill, 5 C. B. 125. In an action to recover for the violation of a trademark it is not erroneous for the court to award as damages the whole profit realized by the defendant from sales of the spurious articles under the simulated trade-mark. Graham v. Plate, 40 Cal. 593; post, ch. 18. not such evidence(x). Every infringement of a right ex contractu also creates a claim to damages. Therefore, when one person maliciously procures or persuades another to break a contract, or interferes between an employer and workman to prevent the latter from completing work he has undertaken to perform, or procures the non-delivery of goods according to contract(y), or deprives a woman of her marriage by false representations, substantial damages are recoverable(z). A refusal by a banker to pay the order or draft of his customer, he having at the time in his hands sufficient funds of the customer for the purpose, is a wrongful act, injurious to the credit of the customer, entitling him to substantial damages, although no actual damage can be proved at the trial(a). 18 The procurement of the violation of a right creates a cause of action in all instances where the violation is an actionable wrong- as in violations of a right to property, whether real or personal, or to personal security; he who procures the wrong is a joint wrong-doer, and may be sued, either alone or jointly with the agent, for the wrong done(b). Where the plaintiff complained that his wife had unlawfully left him and lived apart from him, and that whilst she was so living apart a large fortune was left her, to her separate use, and she being desirous of returning to the plaintiff to cohabit with him, and the plaintiff being willing and desirous to be reconciled to her, the defendant unlawfully and unjustly persuaded, procured, and enticed her to continue absent and apart from the plaintiff and conceal herself from him, whereby the plaintiff lost the comfort and society of the said wife, and her aid and assistance in his domestic affairs, and the enjoyment of the fortune that had been left her, it was held that this was a wrong and damage such as the law would not leave without a remedy (c). (x) Leather Cloth Co. v. Hirschfield, L. R., 1 Eq. Ca. 299. (y) Green v. Button, 2 C. M. & R. 707. Lumley v. Gye, 2 Ell. & Bl. 238. (2) Sheppard v. Wakeman, 1 Lev. 53. Moody v. Baker, 5 Cow. 351. One who misrepresents the quality of lands to one about to purchase the same, and thereby prevents the owner from making an advantageous sale, is liable in damages in a suit in the nature of an action of slander for defamation of title. Paull v. Halferty, 63 Penn. St. 46. (a) Marzetti v. Williams, 1 B. & Ad. 415. Robin v. Steward, 14 C. B. 595; 23 Law J., C. P. 148; post, ch. 8, s. 1. (b) Erle, J., Lumley v. Gye, 2 Ell. & Bl. 216. by (c) Winsmore v. Greenbank, Willes, 577. Where a wife applies to a stranger for aid, shelter and protection against the cruelty and oppression of her husband, and this aid and protection is given in good faith and from motives of humanity, no action can be maintained the husband against such party for harboring the wife. The burden is on the husband to show that the protection was given from an unworthy motive. Barnes v. Allen, 1 Keyes (N. Y.) 390. Hutchinson v. Peck, 5 Johns. 196. Schuneman v. Palmer, 4 Barb. 225. A father may lawfully receive his married daughter into his house, and even advise her to leave her husband, if the character of the husband is such as to excuse her leaving him. Bennett v. Smith, 21 Barb. 439. See Burnett v. Burkhead, 21 Ark. 77. 19 The general legal rights of mankind are the rights-of personal security, personal liberty, or private property; and private property is either property in possession, property in action, or property that an individual has a special right to acquire(d). Wherever personal security has been violated by an assault, or individual liberty has been infringed by unlawful restraint of the person (post, ch. 12), an action for substantial damages is maintainable, although the personal inconvenience and suffering may be of the slightest character; and wherever the wrong is accompanied by circumstances of personal insult, or by a false charge or accusation of some crime or misdemeanor, exemplary damages will be recoverable(e). There are many cases in which an act is perfectly lawful in itself, and will continue to be so, until damage has been done to the property or person of another; but from the moment such damage arises the act becomes unlawful, and an action is maintainable for the injury. This is the case where a man sinks mines and makes excavations in his own land, or lights a fire thereon, doing no damage in the first instance to his neighbor, but subsequently causing his neighbor's land to slide down into the artificial hollow(f), or the neighbor's house to be burned by the unexpected spreading of the fire(g). 20 Injuries to property indirectly brought about by menaces, false representation, or fraud, create as valid a cause of action as any direct injury from force or trespass. Thus, if the plaintiff's tenants have been driven away from their holdings by the menaces of the defendant, damages are recoverable for the wrong done(h). Questions of proprietary right often involve nice distinctions. Thus, as regards the right of a landowner or occupier of lands to the preservation on his land, and to the means of reducing into his possession, birds and animals feræ naturæ, it has been held that the owner of a decoy pond may maintain an action against a person who wilfully discharges guns near the decoy pond, and frightens away the wild ( Bayley, J., Hannam ở. Mockett, 2 B. & C. 937. (e) Goddard v. Grand Trunk R. R. Co., 57 Maine, 202. Taylor v. Grand Trunk R. R. Co., 48 28 45. Law J., Q. B. 378. Smith v. Thackerah, v. Stamp, 1 Salk. 13. Webb v. Rome, (g) Filister v. Phippard, 11 Q. B. 347. Tubervil Watertown & Ogdensburgh R. R. Co., 49 N. Y. 420. Higgins v. Dewey, 107 Mass. 494. (h) 1 Roll. Abr. 108, pl. 21. See Carew v. Rutherford, 106 Mass. 1. fowls(i), because wild fowl are protected by the statute 25 Hen. 8, c. 11, and constitute a known article of food; and the keeping of a decoy pond is useful to the public, and a profitable mode of employing the land; but that no such action is maintainable against a person who has wilfully and maliciously discharged guns near the plaintiff's rookery, and frightened away the rooks, and caused them to forsake the plaintiff's trees, for rooks have been declared to be a nuisance by the legislature; and no person can claim a right to have them resort to his lands, nor can any person become a wrong-doer by preventing their so doing(k). So it is an actionable injury to fire off guns to frighten your neighbor's grouse, and prevent them going from your land to his(). 21 Literary and artistic property.-Every one has at common law a right to the exclusive possession and enjoyment of his intellectual and manual labors, so that if a man devotes his private hours to literary composition, or artistic works, another person has no right to appropriate to himself the produce of his labor without his consent. The unpublished manuscript of the author, for example, cannot be used, copied, or published, without his authority(m); nor the unpublished lectures of a lecturer(n); nor the picture, etching, or portrait of the painter or photographer(o). If, therefore, a geologist gets a fossil engraved or photographed, in order to send it to his friends, or the owner of a picture or a portrait lends it to a friend to get it engraved, any one who gets possession of the photograph or the engraving has no right at common law to take copies of it for sale. And whoever handles or deals with photographs, without the consent of the owner of them, in order to get negatives from them, or for any other purpose, is guilty of an act of trespass(p.) 22 Interference by force or fraud with the free exercise of another's trade or occupation, or means of livelihood, is a tort-such as preventing people by the use of threats and intimidation from trading with the plaintiff's (1) Keeble v. Hickeringill, 11 Mod. 74, 130; 3 Salk. 9; Holt, 14. Carrington v. Taylor, 11 East, 571. (k) Hannam v. Mockett, 2 B. & C. 943. (7) Ibbotson v. Peat, 34 Law J., C. P. 118. (m) Queensberry (Duke of) v. Shebbeare, 2 Eden, 329. Palmer v. De Witt, 47 N. Y. 532. (n) Abernethy v. Hutchinson, 1 H. & Tw. 40; 3 Law J., Ch. 209. Bartlett v. Critenden, 4 McLean, 300; 5 id. 32. (0) Prince Albert v. Strange, 1 Mac. & Gord. 42; 18 Law J., Ch. 126. Oertel v. Wood, 40 How. (N. Y.) 10. The same rule applies to uncopyrighted musical compositions. Wall v. Gordon, 12 Abb. N. S. (N. Y.) 349. To an uncopyrighted and unpublished manuscript drama. Palmer v De Witt, 47 N. Y. 532. And to letters not intended for publication. Woolsey v. Judd, 4 Duer (N. Y.), 379. Grigsby v. Breckinridge, 2 Bush (Ky.), 480. (p) Mayall v. Higby, 1 H. & C. 148; 31 Law J., Exch. 329; post, s. 2, and post, ch. 7. vessel in a foreign port(q), or dealing at the plaintiff's shop, or sending their children to the plaintiff's school, or placing obstructions and impediments in the way of the exercise of the right of free access to and from a man's place of business(). Where the plaintiff's declaration of his cause of action set forth that he was a mason, and possessed of a stone quarry, and quarried and dug stones therefrom, as well to sell as to build stone buildings, and that the defendant, intending to deprive him of the benefit of his quarry, disturbed his workmen and all comers, threatening to maim and vex them with suits if they worked or bought stones there, whereupon all the buyers desisted from buying and the workmen from working there, it was held that this was a great damage to the plaintiff and a good cause of action(s). And in a case of intimidation by trades' unionists, an injunction was granted against issuing placards enjoining workmen not to work for the plaintiff till the dispute between the plaintiff and the trade union was settled, on the ground that, although the act of such unionists amounted to a crime, yet it also tended to the destruction or deterioration of the plaintiff's property(t). "There are two sorts of acts for doing damage to a man's employment, for which an action lies: the one is in respect of a man's privilege, the other is in respect of his property. In that of a man's franchise or privilege whereby he hath a fair, market, or ferry, if another should use the like liberty, though out of his limits, he shall be liable to an action, though by grant from the king. But therein is the difference to be taken between a liberty in which the public hath a benefit and that wherein the public is not concerned. The other is where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood; there an action lies in all cases. But where one man doth damage to another by using the same employment no action will lie, because one man has as much liberty to use an employment as another." Thus, where one schoolmaster sets up a new school to the damage of an ancient school, and thereby the old scholars are allured from the old school to come to the new school, an action is not maintainable (u). But "if a man should lie in wait and fright the (q) Tarleton v. McGawley, Peake 270. (r) Bell v. Mid. Rail. Co., 10 C. B., N. S. 307; 30 Law J., C. P. 273. (s) Garrett v. Taylor, Cro. Jac. 567. See Carew v. Rutherford, 106 Mass. 1; Commonwealth v. Hunt, 4 Metc. 111, 129. (f) Springhead Spinning Co. v. Riley, L. R., 6 Eq. Ca. 551. See State v. Donaldson, 8 Vroom. (N. J.) 151. (u) 11 Hen. 4, fol. 47, pl. 21; fol. 14, pl. 23. |