who harbor dogs on their premises are deemed to be the owners of the dogs, unless they can prove the contrary, and show that the dog remained on their premises without their knowledge(i).

382 Trespasses where the surface and subsoil of land constitute separate freeholds. If it appears that the plaintiff has parted with the vesture and herbage, and right to the surface of the land, and retains only an interest in the subsoil, he cannot maintain an action for trespasses upon the surface(); but if any person digs holes through the surface, and trespasses upon the subsoil, he is then entitled to an action for damages(). If land is demised generally to a lessee, who enters under the lease, he is in possession of both the surface and the minerals; but he has no right to work the minerals without the license of the lessor, neither can the lessor work them without the permission of the lessee. If the adjoining occupier sinks a mine in his own land, and makes lateral excavations, trespassing upon the minerals of the lessee without disturbing the surface of the land in his occupation, the lessee may, nevertheless, maintain an action for the trespass and injury to his possessory interest, and the lessor may maintain an action for the injury to his reversionary estate. surface and minerals have been dissevered in title, and have become separate tenements, then the grantee or owner of the minerals is the only person entitled to sue in respect of trespasses upon them(m).

383 Forcible entry and detainer.-At common law, if a man had a right to the possession of land, and a right to enter thereon, he might enter and obtain possession with force and arms, and retain possession by force, which gave an opportunity, we are told, to powerful men to enter upon land under pretence of feigned titles, and forcibly eject their weaker brethren(n), and therefore it was enacted (5 Rich. 2, c. 7), that none thenceforth make entry into any lands and tenements but in cases where entry is given by the law, and in that case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner "(o). A mere trespasser cannot, by the very act of trespass, immediately, and without acquiescence on the part of the

66

(i) 25 & 26 Vict. c. 59; 26 & 27 Vict. c. 103, ante, p. 30.

(k) Cox v. Mousley, 5 C. B. 549.

(1) Cox v. Glue, ib. 549, 553; 17 Law J., C. P. 162.

(m) Keyse v. Powell, 2 Ell. & Bl. 144; 22 Law J., Q. B. 305. Lewis v. Branthwaite, 2 B. & Ad. 437. See Hamilton (Duke of \ v. Graham, L. R., 2 Sc. App. 166.

(n) Bac. Abr. FORCIBLE ENTRY.

(0) As to recovery of possession by persons forcibly expelled, see 8 H. 6, c. 9; 31 Eliz. c. 11; 21 Jac. 1, c. 15.

landowner, become possessed of the land upon which he has trespassed, and which he tortiously holds, and he may consequently be expelled by main force(p); but if he is allowed to continue on the land, and the landowner sleeps upon his rights, and makes no effort to remove him, he will gain a possession, wrongful though it be, and cannot be forcibly ejected. A mere intruder upon land, who has been allowed to run up a hut and occupy it, has no right to the hut or to the possession thereof, and the landlord may enter and pull down the hut about the ears of the occupants and remove the materials(q). But the dwelling-houses of strangers cannot be pulled down whilst people are living in them, for the mere purpose of abating a nuisance or preventing the enjoyment of some incorporeal right, such as a right of common(). The rightful owner cannot, in any case, when he has a right of entry, whether legal or equitable, be made responsible in damages for a trespass upon his own land, for he is no trespasser if he has a right to go upon it(s); but if he assaults and expels persons who, having originally come into possession lawfully, continue to hold unlawfully, after their title to occupy has been determined, he may be made responsible for the assault, and be indicted for a forcible entry(t), but he cannot be made responsible in damages for the expulsion(u). Having a right to enter upon his own land, he may do so peaceably; and if his entry is resisted by force, he may, it seems, repel force by force(v).

"Where a breach of the peace," observes Parke, B., "is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public, in the shape of an indictment for a forcible entry, he is not liable to the other party. It is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that the defendant entered upon it accordingly"(x). 384 Of trespasses upon the soil of highways set out and dedicated to the public by private proprietors.-By setting out a highway, and dedicating it to the use of the public, the owner of the land over which the

(p) Browne v. Dawson, 12 Ad. & E. 629.

(9) Davison v. Wilson, 11 Q. B. 890; 17 Law J., Q. B. 196.

(r) Jones v. Jones, 31 Law J., Exch. 506.

(s) Davison v. Wilson, supra. Allen v. Walker, L. R., 5 Exch. 187.

(t) Newton v. Harland, 1 Sc. N. R. 492.

*(u) Pollen v. Brewer, 7 C. B. N. S., 373.

(v) Newton v. Harland, 1 Sc. N. R. 492.

(z) Harvey v. Bridges, 14 M. & W. 442; 1 Exch. 261. Davison v. Wilson, 11 Q. B. 890. Meriton v. Coombes, 9 C. B. 787; 19 Law J., C. P. 336.

right of way is granted does not thereby part with the property in the soil. The landlord, in such a case, has full dominion and control over the land subject to the easement, and may recover it in ejectment(y), or bring an action for a trespass against any person who deposits stones or rubbish upon the soil, or constructs a bridge over or upon any part of the highway, or infringes in anywise upon the ordinary proprietary rights of the owner of the soil(z). Nor do the Highway Acts or the Metropolis Local Management Acts interfere with this right, or the fact that the public have appropriated part of the highway to one kind of passage, viz., for carriages, and another part to another, e.g. to foot-passengers. For the reasonable use and enjoyment therefore of his own premises the owner may make a carriage-way across the foot-way(a). And the same rule prevails with regard to land over which any other privilege or easement has been granted to particular individuals, or to the public at large, such as a stall in a market(b). 385 Of continuing trespasses.—If a man throws a heap of stones, or builds a wall, or plants posts or rails on his neighbor's land, and there leaves them, an action will lie against him for the trespass, and the right to sue will continue from day to day, until the incumbrance is removed. An action may be brought for the original trespass in placing the incumbrance on the land, and another action for continuing the thing so erected; for the recovery of damages in the first action, by way of satisfaction for the wrong, does not operate as a purchase of the right to continue the injury(c).

(y) Goodtitle v. Alker, 1 Burr. 133. Cole v. Drew, 44 Vt. 49. Holden v. Shattuck, 34 Vt. 336. Perley v. Chandler, 6 Mass. 454. Stackpole v. Healy, 16 id. 33. Jackson v. Hathaway, 15 Johns. 447. Etz v. Daily, 20 Barb. (N. Y.) 32. But it will not lie for a street unless the occupation of it by the defendant is wholly inconsistent with the public easement. Adams v. Saratoga & Washington R. R., 11 Barb. (N. Y.) 414.

(z) 3 Com. Dig. CHIMIN. (A. 2), 27. Lade v. Shepherd, 2 Str. 1004. Every v. Smith, 26 Law J., Exch. 345. See 27 & 28 Vict. c. 101, s. 51, ante, p. 272; Cole v. Drew, 44 Vt. 49; Hollenbeck v. Rowley, 8 Allen (Mass.), 473; and see Pound v. Plumstead Board of Works, L. R., 6 Q. B. 183; and cases cited in the preceding note.

A private individual, under the direction of the proper officer, may lawfully cut the grass growing beside the highway if it impedes the exercise of the right of the public to the enjoy ment of the public easement. But the grass belongs to the owner of the fee, and if the person cutting it carries it away, this renders the whole act wrongful, and the

it a trespasser ab initio. Cole v. Drew, 44 Vt. 49.

(a) St. Mary Newington v. Jacobs, L. R., 7 Q. B. 47.

(b) Mayor of Northampton v. Ward, 1 Wils. 114.

(c) Holmes v. Wilson, 10 Ad. &. E. 503. Bowyer v. Cook, 4 C. B. 236.

person committing

SECTION II.

OF THE TITLE TO LAND, FENCES, AND BOUNDARY-WALLS.

386 Proof of possession of land and pernancy of the rents is primâ facie evidence of a seisin in fee of the person possessed, the presumption being in favor of the fee and not of any less estate(d), until it is rebutted by a contrary presumption arising from the surrounding circumstances. If, therefore, a person is shown to be in receipt of rent, he is presumed to be entitled to the reversion in fee of the land in respect of which the rent is received, unless the rent is so disproportioned to the annual value of the property, as to lead to the presumption of its being a mere quit rent(e). Thus, in an action on the case for an injury to the plaintiff's reversion in cutting down trees on land in the possession of his tenant, proof of payment of rent by the latter to the plaintiff is primâ facie evidence of the plaintiff being the reversioner, and of the trees being his property(ƒ).

387 Trial of title in an action of trespass.-If the defendant, in an action

for a trespass committed by him upon the land or messuage of the plaintiff, pleads that the close or land in which the trespass was committed was the soil and freehold of the defendant, the plaintiff's title to the property is in issue, and also his right of possession (post, s. 3), and the defendant may, under this plea, bring forward evidence to show that he had a right to enter upon the close because it was his freehold, or because it has been demised to him, or because he has obtained an indefeasible title under the statute for the limitation of actions and suits relating to real property (g).

388 Title to realty from twenty years' possession-Limitation of actions for the recovery of realty.-By 3 & 4 Wm. 4, c. 27, s. 2, entitled "An Act for the Limitation of Actions and Suits relating to Real Property," it is enacted, that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or, if such right shall not have accrued to some person

(d) Jayne v. Price, 5 Taunt. 326. Doe v. Penfold, 8 C. & P. 537.

(e) Doe v. Johnson, Gow, 183. Reynolds v. Reynolds, 12 Ir. Eq. Rep. 181.

(f) Daintry v. Brocklehurst, 3 Exch. 209.

(g) As to the registration of title to real estate, see 25 & 26 Vict. c. 53.

through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same(h). Where the person really entitled to an estate is in possession but as agent for another, to whom he, under a mistake, accounts for the rents, he has no right of entry without giving up his agency; the person in receipt of the rents, therefore, may acquire a title by long possession as against him(i). An encroachment made by a tenant s made for the benefit of his landlord, and the statute, therefore, does not apply to the land enclosed till the termination of the tenant's interest(j).

389 Accrual of the right on dispossession or discontinuance of possession.— When the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, then the right is to be deemed (s. 3)

(h) Brassington v. Llewellyn, 27 Law J., Exch. 297.

The period within which real actions must be brought has been made the subject of various statutory provisions, and in many, but not all of the States, the English period of limitation has been adopted.

The States which require all actions for the recovery of lands to be brought within twenty years, are: New York (Code, §§ 78, 79, 80), New Jersey (Laws of 1799, §§ 9, 10, 12, 13; Nixon's Dig., 1855, p. 436), Maine (Rev. Stat. of 1857, tit. 9, ch. 105), New Hampshire (Gen. Stat. of 1867, ch. 202, §§ 1, 2), Massachusetts (Gen. Stat. of 1860, ch. 154), Rhode Island (Rev. Stat. of 1857, ch. 148. §§ 2, 3), Delaware (Code of 1852, ch. 122, p. 439), Maryland (Code of 1860, art. 57, § 9, p. 397), Indiana (2 Rev. Stat., 76, 77), Illinois (2 Comp. Stat. of 1858, pp. 749, 750). Wisconsin (Rev. Stat. of 1858, ch. 138, §§ 1-14, p. 819), Minnesota (Gen. Stat. of 1858, ch. 60, § 4), Oregon (Gen. Stat. of 1864, tit. 2, ch. 1, § 4), Florida (Thomp. Dig. of 1847, p. 441).

The statutes of some of the States have fixed the period of limitation at fifteen years. This is the rule in Vermont (Gen. Stat. of 1863, ch. 63, §§ 1, 2, 3, 18, 21), Connecticut (Gen. Stat, of 1866, p. 551), Kansas (Rev. Stat. of 1868, ch. 80, §§ 16, 19), Virginia (Code of 1860, tit. 45, ch. 149, §§ 1-4, 18), Kentucky (2 Rev. Stat. of 1860, ch. 63, §§ 1, 2, pp. 123, 125).

The limitation of twenty-one years has been adopted in Pennsylvania (Purdon's Dig. of 1861, pp. 652-654), Ohio (2 Rev. Stat. of 1860, ch. 87, §§ 9, 10, 23), and Nebraska (Rev. Stat. of 1866, part 2, tit. 2, §§ 6, 7).

In some of the other States the statutes have fixed the period of limitation at ten years. This is the rule in Iowa (Rev. Laws of 1860, §§ 2740-2750), Missouri (2 Gen. Stat. of 1866, ch. 191), Nevada (Laws of 1861, ch. 12, §§ 3-15, 21; Laws of 1867, ch. 49), South Carolina (Stat. at Large, 1712, 1744, 1788, 1824), Alabama (Code of 1867, §§ 2899, 2900, 2909, 2910), Mississippi (Rev. Code of 1857, ch. 57, §§ 1, 2, p. 398), and Texas.

The States which fix the period of limitation at seven years, are North Carolina (Rev. Code of 1854, ch. 65, §§ 1, 2, p. 371), Georgia (Laws of 1856, No. 179, §§ 1–24), and Tennessee (Code of 1858, p. 531, §§ 2755, 2757, 2763–2768).

In California the period of limitation is fixed at five years, and in Arkansas at three years. In most if not all of these States the statutes have extended the period of limitation in actions in which the people are a party, or in which some of the parties are under disability, and in a few States exceptions exist in favor of absentees. These exceptions will be noticed in a subsequent note. But the references to the statutes given above will be found to cover the exceptions as well as the rule.

(i) Williams v. Pott, L. R., 12 Eq. Ca. 149.

(j) Whitmore v. Humphries, L. R., 7 C. P. 1.