451 Proof of a public right of way.-Nothing done by a lessee, without the knowledge or consent of the owner of the fee, will, as we have seen (ante, p. 269), give a right of way to the public; and the public can take no larger or more extensive right of way than the owner of the fee thinks fit to grant or to allow. "They must take secundum formam doni, and if they cannot take according to that, they cannot take at all. If a restriction cannot by law exist as to a public way, then the grant is only a license revocable." Where, therefore, a landowner suffered the public to use for several years a road through his estate for all purposes except that of carrying coals, it was held that this was either a limited dedication of the road to the public or no dedication at all, but only a license revocable; and that a person carrying coals along the road, after notice not to do so, was a trespasser(a). 452 Proof of a right of way over vacant or waste strips of land extending alongside a private thoroughfare.—" When,” observes Lord Tenterden, "I see a space of fifty feet, through which a road passes between inclosures set out under an Act of Parliament, I am of opinion that, unless the contrary be shown, the public are entitled to the whole of that space, although, perhaps, from economy, the whole may not have been kept in repair. If it were once held that only the middle part, which carriages ordinarily run upon, was the road, you might by degrees inclose up to it, so that there would not be room left for two carriages to pass. The space at the sides is also necessary to afford the benefit of air and sun "(b). A highway board, therefore, or other authority having jurisdiction over a highway set out under an Enclosure Act, are justified in cutting down trees growing on the space between the highway as actually used, and its boundary as set out in the Enclosure Act, but not, it seems, in selling them, as against the owner of the soil in which they grew(c).

453 Proof of entry on the plaintiff's land for the purpose of depositing thereon the plaintiff's own goods, or removing therefrom the goods of the defendant.-In Rolle's Abridgment it is said, "If a man comes into my close with an iron bar and sledge, and there breaks my stones, and after departs and leaves the sledge and bar in my close, in an action of trespass for taking and carrying of them away, I may justify the taking of them and putting them in the close of the plaintiff

(a) Marquis of Stafford v. Coyney, 7 B. & C. 257. As to proof of dedication of way, see ante, p. 265, et seq.

(b) Rex v. Wright, ante, p. 272.

(c) Turner v. Ringwood Highway Board, L. R., 9 Eq. Ca. 418. See Phifer v. Cox, 2 Ohio St. 248; Cole v. Drew, 44 Vt. 49.

himself next adjoining, especially giving notice of it to the plaintiff, inasmuch as they were brought into my close of his own tort; and in such case of tort I am not bound to carry them to the pound, but may well remove the wrong done to myself by them by tort of the plaintiff"(d). An entry on the plaintiff's land may be justified on the ground that the plaintiff took the defendant's goods and carried them on to his own land, wherefore the defendant entered upon the plaintiff's land and took his goods back again(e); but the entry is not justifiable from the mere fact of the plaintiff's goods being on the defendant's land. It must be shown that they came there by the plaintiff's act(ƒ). 454 Of the damages recoverable in actions for trespasses upon real property.All damages which naturally result from the wrongful act of the defendant, and are directly traceable thereto, may be recovered by the plaintiff, if he claims them in the declaration(g). Where the plaintiff, being desirous of letting his house, placed the key under the control of the defendant, and, the key having been carried away, the defendant got a ladder and entered the house through a bed-room window, which had no fastenings, and showed some strangers over the house, and a few nights afterwards the house was entered, apparently by the same window, and valuable property of the plaintiff was stolen, it was held that the defendant was responsible in an action of trespass for the loss the plaintiff sustained by the robbery (h).

455 Trespasses on land after notice or warning not to trespass.-Surrounding circumstances of aggravation will materially influence the amount of damages to be recovered for a trespass upon land. Where the plaintiff, a gentleman of fortune, was shooting upon his estate, and the defendant, a banker and magistrate, and member of parliament, went up to the plaintiff and told him he would join his shooting party, and the plaintiff declined, and ordered him off his land, and gave him notice not to shoot there; but the defendant swore that he would shoot there, and did so, and threatened and defied the plaintiff, and the jury gave 5007. damages, the court refused to disturb the verdict. "I do not know," observes Gibbs, C.J., "upon what principle we can grant a rule for a new trial in this case, unless we were to lay it down

(d) Cole v. Maundy, 1 Roll. Abr. TRESPASS, 1 pl. 17, p. 566. Rea v. Sheward, 2 M. & W. 426. (e) 3 Vin. Abr. TRESPASS, 1. As to breaking open a door to get at books and papers, sec Burridge v. Nicholetts, 30 Law J., Exch. 145; Blades v. Higgs, ib. C. P. 349, post, p. 336; ante, p. 9.

(f) Patrick v. Colerick, 3 M. & W. 485. Anthony v. Haney, 1 M. & Sc. 306; 8 Bing. 186. Williams v. Morris, 8 M. & W. 488. See McLeod v. Jones, 105 Mass. 403.

(g) Ante, pp. 90, 91, 185; and post, ch. 22.

(h) Ancaster v. Milling, 2 D. & R. 714.

that the jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentleman has a paved walk in his paddock before his window, and that a man intrudes and walks up and down before the window, and remains there after he has been told to go away, and looks in while the owner is at dinner, is the trespasser to be permitted to say, 'Here is a halfpenny for you, which is the full extent of all the mischief I have done,' would that be a compensation? "(i).

Where a landlord entered upon premises demised to his tenant, without asking the leave of the latter, and sold the timber-trees standing in the hedge-rows, and caused them to be felled, cut up, and removed, and great damage was done to the growing crops of the tenant, and the latter brought an action against the landlord for damages, and recovered 1007. beyond the net value of the whole of the crops, the court declined to interfere to have the amount of damages reconsidered, although they were of opinion that the jury had taken an exaggerated view of them(k).

456 Damages in respect of trespasses in dwelling-houses.-The law guards with great jealousy and watchfulness the peaceable possession by every man of his dwelling-house, and enables all who have been disturbed in the enjoyment thereof to recover substantial damages from every wilful and intentional intruder, though no actual pecuniary damage can be proved to have been done in point of fact either to property or the person(). "Rights of action of this sort are given,' observes Lord Denman, "in respect of the immediate and present violation of the possession of the plaintiff, independently of his right of property; they are an extension of that protection which the law throws around the person, and substantial damages may be recovered in respect of such rights, though no loss or diminution in the value of property may have occurred "(m).

(i) Merest . Harvey, 5 Taunt. 441.

(k) Williams v. Currie, 1 C. B. 847. See Bousall v. McKay, 1 Houston (Del.), 520. Exemplary damages may be given in an action of trespass quare clausum fregit, where there are such circumstances of aggravation, of insult, or of malice, as would warrant the recovery of such damages in any other form of action. Perkins v. Towle, 43 N. H. 220. Nagle v. Mullison, 34 Penn. St. 48. St. Peter's Church v. Beach, 26 Conn. 355. Major v. Pulliam, 3 Dana, 584. See Druse v. Wheeler, 22 Mich. 439.

But the right to award exemplary damages does not depend on whether the entry was malicious or otherwise. Devaughn v. Heath, 37 Ala. 595. Goetz v. Ambs, 27 Mo. 28.

But in no case can vindictive damages be recovered from the estate of a deceased trespasser, no matter how aggravated the trespass may have been. Wright v. Donnell, 34 Texas, 291.

(1) Sears v. Lyons, 2 Stark. 318.

(m) Rogers v. Spence, 13 M. & W. 581.

457 Assessment of damages in cases of injury to buildings.-The amount of damages to be recovered in an action of tort for the wrongful and malicious demolition of a house in the actual occupation of the owner, seems to be peculiarly for the consideration of a jury. The question for them to determine is, what sum of money will repair the injury done to the plaintiff by the loss of his house, and what sum will be required to replace the house, as nearly as practicable, in the situation and state in which it was at the time of the commission of the injury(n).

458 Assessment of damages for digging and carrying away coal and earth.

In an action for a trespass in taking away the plaintiff's coal, he is entitled to recover the value of the coal at the time of its severance from the soil, and the trespasser cannot claim any deduction therefrom in respect of the expense incurred by him in getting or severing the coal(o), unless there is a real disputed title, or the defendant has taken the coal inadvertently under a bonâ fide belief that he had a right to do so, in which case the jury may give such an amount only as the plaintiff would have obtained from the defendant on a sale of the coal(p). This value is the sale price at the pit's mouth, after deducting the expense of carrying the coals from the place in the mine where they were got to the pit's mouth (q). The plaintiff is also entitled to compensation for any damage done beyond the removal of the coal, e.g., for all injury done to his soil by digging, and for the trespass committed in dragging the coal along the adit of his mine, etc.(r). The estimate of the loss from the removal of the coal depends. upon the value of the coal at the time of its severance from the soil; and the defendant has no right to any deduction in respect of royalty payable by the plaintiff to the mine-owner on coals got from the mine(s).

Where an action was brought for digging into the plaintiff's close, and carrying away therefrom large quantities of earth, soil, etc., it was held that the plaintiff was entitled, by way of compensation, to what the land was worth to him, and not to the amount which would be required to enable the plaintiff to replace the soil which had been. taken away(t).

(n) Duke of Newcastle v. Hundred of Broxtowe, 4 B. & Ad. 282.

(0) Martin v. Porter, 5 M. & W. 352. See Lynvi Co. v. Brogden, L. R., 11 Eq. Ca. 188; Phillips v. Homfray, L. R., 6 Ch. App. 770.

(p) Wood v. Morewood, 3 Q. B. 440n. See Hilton v. Woods, L. R., 4 Eq. Ca. 432; Jegon v. Vivian, L. R., 6 Ch. App. 742.

(q) Lynvi Co. v. Brogden, Phillips v. Homfray, supra.

(r) Jegon v. Vivian, supra.

(s) Wild v. Holt, 9 M. & W. 672. Morgan v. Powell, 3 Q. B. 283.

(t) Jones v. Gooday, 8 M. & W. 146.

Mueller v. St. Louis, etc., R. R. Co., 31 Mo. 262.

459 Assessment of damages in respect of trespasses by diseased cattle.-If, in consequence of an unlawful entry of diseased cattle into the plaintiff's close, the plaintiff's cattle have become infected with the disease, this is a matter of aggravation of damages, and may be recovered, if claimed in a declaration for the trespass(u).

460 Assessment of damages where the plaintiff has no certain or determinate interest in the property.—If the plaintiff is only tenant on sufferance or tenant at will, the damages may be merely nominal. Where a trespass, of which the plaintiff complained, consisted in pulling down a wall between the close of the plaintiff and an adjoining close of the defendant, in doing which a few bricks and some mortar fell upon the plaintiff's land, and no evidence was given as to the nature of the plaintiff's interest in the premises, and the jury gave 1s. damages, it was held, that as the plaintiff had not proved that he had any interest in the land beyond that which results from the bare possession, he had not shown himself to be entitled to any greater damages than the jury had given(x). But where the plaintiff proves that he is in the actual occupation and possession of the land and crops growing thereon, he will be entitled to recover exemplary damages from the trespassers who wrongfully enter upon the land, and trample down and injure the crops, although he is only tenant-at-will; for if a stranger subvert land leased at will, the lessee may bring an action against him and have damages for the profits; and the lessor may have another action, and recover damages for the destruction of the land(y). But as the injury consists of two parts, an injury to a temporary right in the lessee and to the permanent freehold of the lessor, the damages must be assessed with reference to their several interests; for where different persons have distinct rights in the subject-matter of a trespass, the compensation must be to each in proportion to the injury he has received. One of them cannot claim that part of the compensation which belongs to another; nor can the satisfaction made to one be a bar to an action brought by the other(z).

461 Apportionment of damages as between tenant and reversioner(a).-In the case of injuries to trees, the damages from the immediate loss of the

(u) Anderson v. Buckton, 1 Str. 192. Barnum v. Van Dusen, 16 Conn. 200. (x) Twyman v. Knowles, 13 C. B. 224.

(y) 2 Roll. Abr. 551.

(z) Chambre, J., Attersoll v. Stevens, 1 Taunt. 194. The damages which a plaintiff may lawfully recover in an action of trespass must be appropriate to the tenure by which he holds; and he cannot lawfully recover any damages except such as affect his own right. Gilbert v. Kennedy, 22 Mich. 5.

(a) Ante, pp. 91, 92, 185, 255, 256.