tained, the proper remedy is case. Case is also the proper remedy for any disturbance of an easement.

3603. A pew, although tangible, is not such corporeal property in possession for which trespass will lie, and, therefore, the owners of a church or meeting house may pull it down, and by that means destroy the pew.

62

3604. To maintain trespass for a tortious entry upon real estate, the plaintiff must have a title accompanied by actual possession, or simply the actual possession; and this property or right need not be to the fee; or it may be a property in trees, or vesture of the land, independently of the ownership in the soil. So it may also be in any portion of the vesture, as in the herbage, or the like; and the estate therein may, as in the land itself, be absolute, or only for a limited period. Each of these may be holden by a different tenure, and they are to be accounted as separate and distinct from one another.6

A trespass is not injurious to the right, but only to the possession; no one can, therefore, consider himself aggrieved by a trespass who was not in possession of the property injured at the time, and had not a right to that possession.65 But a constructive possession is sufficient for that purpose."

64

The proprietor of land cannot maintain an action of trespass unless he has first possessed himself of the soil by entry upon it, and it is immaterial whether he became proprietor by purchase or by operation of law. His entry, when once made, has a retrospective effect, and he is considered to have been in possession from the moment his title accrued; in the case of an heir, from the death of the ancestor; a devisee, from the decease of the devisor; a personal representative, from the demise of the testator or intestate; and a purchaser, from the conclusion of the contract.67

When the possession, once acquired, has been interrupted for a time, it must be regained before the owner of the land can punish a trespass committed after his right of repossession accrued. If, for example, Peter lease to Paul land. for years, and after the determination of the term, before Peter re-enters, John, a stranger, enters, and subverts the soil, Peter cannot demand a reparation for his injury before he repossesses himself of the property; but, having done so, the same relation back which obtains in the former cases has also place in this, so that, after Peter's re-entry, he is considered as having been in possession from the moment when the term expired.

The entry may be made upon a part of the land, in the name of the whole,“

61 Comyn, Dig. Action on the Case, Disturbance, A, 2.

62 Daniel v. Wood, 1 Pick. Mass. 102; Stocks v. Booth, 1 Term, 430.

63 Stammers v. Dixon, 7 East, 200. Á grantor who has in his deed reserved the trees may maintain trespass against his grantee for cutting and carrying them away. Goodwin v. Hubbard, 47 Me. 595. See also Haskin v. Record, 32 Vt. 575.

64 Bedlingfield v. Onslow, 2 Lev. 209; Richardson v. Palmer, 38 N. H. 212. A servant, put in the occupation of a cottage, with less wages on that account, does not occupy it as a tenant, but the master may consider himself in possession. Bertie v. Beaumont, 16 East, 33.

65 Addleman v. Way, 4 Yeates, Penn. 218; Torrence v. Irwin, 2 Yeates, Penn. 210; Chatham v. Brainerd, 11 Conn. 60; Truss v. Old, 6 Rand. Va. 556; Begelow v. Lehr, 4 Watts, Penn. 337; Shepard v. Pratt, 15 Pick. Mass. 32; Beggs v. Thompson, 2 Ohio, 95; Rockwell v. Jones, 21 Ill. 279; Zell v. Ream, 31 Penn. St. 304.

V.

66 Davis v. Clancy, 3 M'Cord, So. C. 422; Bulkley v. Dorbeare, 7 Conn. 233; Terpenning Gallup, 8 Iowa, 74; Safford v. Basto, 4 Mich. 406.

67 In New Hampshire, an heir, a devisee, or grantee, may bring trespass without first making an entry. Dexter v. Sullivan, 34 N. H. 478; Warren v. Cochran, 29 N. H. 379. A purchaser who allows his vendor to remain in possession on sufferance merely may bring trespass against a third party. Chesley v. Brockaway, 34 Vt. 550. It is held in Massachusetts that a mortgagee not in possession may maintain trespass against one who removes a building from the premises. Cole v. Stewart, 11 Cush. Mass. 181.

So a party who has possession of a farm may maintain trespass for an injury to the inclosed woodland attached to it. Penn v. Preston, 2 Rawle, Penn. 14.

either in person or by attorney. If a stranger of his own accord, without any authority from the owner, enters to the owner's use, who afterward recognizes the act, this makes the stranger attorney ab initio.69 And if one of several joint tenants, or tenants in common, enters, they being jointly entitled to the possession, his entry inures to the benefit of all.70

With regard to the nature of the possession, it is to be observed that a mere possession is sufficient against any party who cannot show a better title, or, as it is generally expressed, against a mere wrong-doer." For example, a female servant has such possession of her bed-room as will entitle her to maintain trespass against a person who wrongfully forces himself into it while she is in bed; 72 and so a carpenter has sufficient possession to maintain trespass for an injury with force of premises which he possesses for the purpose of repairing them.73 It is no defence to an action of trespass quare clausum fregit brought by the plaintiff in possession to show that the title of the premises is in a stranger, unless the defendant also show an authority from the stranger to do the act complained of.74

But though a tenant at will or sufferance may maintain trespass against a wrong-doer, he cannot support this action against his landlord, because an entry by the latter determines the tenancy.75

One who has a mere incorporeal right cannot maintain trespass for its invasion; as a party having a right of common of pasture cannot support trespass quare clausum fregit for treading down the grass growing upon the land upon which he has such right of common, for although he has a right to take the grass by the mouth of his commonable cattle, still he is not considered in possession of the land.76

A reversioner or remainder-man, who has no right to possession, cannot maintain trespass for a wrong done to the estate; their remedy, when the reversionary interest or the remainder has been injured, is an action on the

77 case.

The purchaser of a growing crop has sufficient possession to maintain trespass against a stranger who enters and cuts it.78

3605. The injury to real property for which trespass can be supported, we have seen, must have been committed with force actual or implied, and must have been immediate. Though the act of breaking into the inclosure of the proprietor is, in general, injurious to him, still it may take place without causing him any damage, and in that case he cannot recover any compensation.79 It will be recollected that the owner of the superficies is entitled upward a superficie terræ usque ad cœlum, and that his property is inclosed with an imag

69 Croke, Eliz. 561.

70 Smith v. Dale, Hob. 120.

"Catterlin v. Douglass, 17 Ind. 213; Albin v. Lord, 39 N. H. 196; Rogan v. Perry, 6 Wisc. 194.

72 Lewis v. Ponsford, 8 Carr. & P. 687.

73 Hall v. Davis, 2 Carr. & P. 33. See Graham v. Peat, 1 East, 246.

74 Finch v. Alston, 6 Ala. 83; Barstow v. Sprague, 40 N. H. 27; Weimer v. Lowery, 11 Cal. 104; Wilson v. Hinsley, 13 Md. 64.

75 Comyn, Dig. Trespass, B, 2; Starr v. Jackson, 11 Mass. 520; Hingham v. Sprague, 15 Pick. Mass. 102; Mason v. Holt, 1 All. Mass. 45. A landlord who has entered to determine a tenancy at will may maintain trespass for a subsequent entry by the tenant. Mussey v. Scott, 32 Vt. 82.

76 Brooke, Abr. Trespass, pl. 174; Bacon, Abr. Trespass, C, 3.

"Lienow v. Ritchie, 8 Pick. Mass. 235; Taylor v. Townsend, 8 Mass. 411, 415; Cannon v. Hatcher, 1. Hill, So. C. 260; Shattuck v. Gragg, 23 Pick. Mass. 104.

78 Dolloff v. Danforth, 43 N. H. 219.

79

Every trespass on real estate is an injury, and whether damage be caused or not, yet the plaintiff is entitled to a verdict and to nominal damages at least. Attwood v. Fricot, 17 Cal. 37; Champion v. Vincent, 20 Tex. 811.

inary fence, of course extending upward usque ad coelum. The breaking of this imaginary line is a trespass; but if it be broken without causing any damage to the owner, as, where a man flies a kite across the land of another, at a considerable height from the surface, no action lies. But to prove that it is a trespass, it is only necessary to consider that if the line should break, and the instrument fall upon the land, the owner would not be justified in entering upon it to carry it away, as he would be if the kite had been placed there without any fault of his own.

80

81

It is perfectly immaterial whether the wrong-doer intended to commit a trespass or not, except that if it be clearly shown he did not intend to commit the injury, the jury will take this matter into consideration in assessing the damages; but he will be liable to make compensation for the injury he has caused. The injury may be committed without going on the plaintiff's land, as when the defendant shoots game on the land while standing on the public highway; in such case the entry of the shot is considered as his entry, though, in general, when the injury is committed off the plaintiff's land, the remedy is case.

82

3606. It frequently happens that the entry is lawful, and therefore no action could be had against the person who made it; but by his subsequent acts, which are unlawful, he becomes a trespasser ab initio, for the law will not permit that a man whom it has armed with authority shall, under pretence of enforcing its requirements, commit a wrong. 83 Thus, if a landlord enter to determine a lease at will, which is a lawful act, and he had the right so to enter, and afterward unlawfully made a search there for stolen goods, he will be a trespasser ab initio.84 But the abuse of a license given to the defendant by the plaintiff to enter his land will not make him a trespasser ab initio.85 3607. The action of trespass is the proper remedy for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel of which he is in possession. Where the injury consists in causing damage to the property, the action is trespass vi et armis; where the defendant has taken possession and detains the property, the action is trespass de bonis asportatis. This will be considered with reference to the nature of the thing affected, the plaintiff's right to it, and the nature of the injury.

3608. Trespass lies for taking or injuring all inanimate personal property of which possession may be had, and all animals of a domestic or tame nature, as horses, cattle, dogs, cats, and the like, and all animals of marketable value, such as parrots and monkeys; and it is the proper remedy also for taking or injuring animals feræ naturæ when reclaimed, or their bodies when dead; the taking and injuring may be done either by striking, or chasing, if alive, and carrying away the chattel. Although the thing of which the plaintiff has been deprived is only susceptible of a qualified property, as are all animals ferœ

80 Hammond, Nisi P. 164, 165, 168; 2 Rolle, Abr. 567, L, pl. 1.

81 Luttrell v. Hazen, 3 Sneed, Tenn. 20; Pearson v. Inlow, 20 Mo. 322.

82 Keble v. Hickringill, 11 Mod. 74, 130.

83 Gilson v. Fisk, 8 N. H. 404; Bradley v. Davis, 14 Me. 44; Jarrett v. Gwathmey, 5 Blackf. Ind. 237; Sackrider v. McDonald, 10 Johns. N. Y. 253.

84 Faulkner v. Alderson, Gilm. Va. 221.

85 Cushing v. Adams, 18 Pick. Mass. 110, 114; Allen v. Crofoot, 5 Wend. N. Y. 506; Wendell v. Johnson, 8 N. H. 220; Stone v. Knapp, 29 Vt. 501; Humnewell v. Hobart, 42 Me. 565. But see Kissecker v. Monn, 36 Penn. St. 313. Where one entered upon land under an agreement to purchase it, but refused to fulfil his agreement, but cut and carried off timber, it was held that he became a trespasser ab initio. Lyford v. Putman, 35 N. H. 563.

86 Wright v. Ramscot, 1 Saund. 84, n. 2, 3; Fitzherbert, Nat. Brev. 86; Brooke, Abr. Trespass, pl. 407.

naturæ, still the plaintiff may maintain this action; for though under these circumstances a suit by which the value of the chattel is sought to be recovered, such as detinue and trover, cannot be supported, yet trespass may, for the very reason that the value of the property injured is not necessarily demanded in this action; the plaintiff may recover a compensation for the act of dispossessing him.

Where the technical forms of actions are retained, it is sometimes important in this action to observe the distinctions between real and personal estate. Where real estate is entered upon, the proper remedy is trespass quare clausum, and injuries committed by the same act upon chattels on the premises are merely matters of aggravation.87 But trespass de bonis asportatis lies also for carrying off fixtures or portions of a building temporarily dissevered therefrom.88

3609. It is not requisite that the plaintiff should have any other title to the property than possession, because it is for an injury to his possession that the compensation is given him. When the injury was committed he must have had an actual or constructive possession, and also a general or qualified property.89

This property may be either where the party is general owner and entitled to immediate possession; the qualified owner coupled with an interest, and also entitled to immediate possession; a bailee with a naked authority simply; or it may arise from actual possession without the consent of the owner, or even against his consent.

3610. It is a rule or maxim of law that absolute property in personalty prima facie draws to it the possession; if a man, therefore, is the absolute proprietor of a chattel and also entitled to possession, notwithstanding it is out of his custody, yet, in contemplation of law, he is actually possessed; as, when the owner has parted with his possession to a carrier or a servant, giving him only a bare authority to carry or keep, not coupled with an interest in the thing." Assignees under a voluntary assignment who are entitled to the possession of personal property may therefore maintain trespass for it; and so may executors or administrators for an injury to property committed after the death of the testator or intestate, and before probate or granting letters of administration.93

But if the general owner of property part with his possession, and the bailee at the time the injury was committed have a right exclusively to use the thing, the inference of possession is rebutted and the owner has only a right of possession in reversion, in that case he cannot maintain trespass; the bailee may

87 Sturgis v. Warren, 11 Vt. 433; Reed v. Peoria R. R., 18 Ill. 403. 88 Wadleigh v. Janvrin, 41 N. H. 503.

89 Mather v. Trinity Church, 3 Serg. & R. Penn. 512; King v. Humphreys, 10 Penn. St. 217; Brainard v. Barton, 5 Vt. 97; Parsons v. Dickinson, 11 Pick. Mass. 382; Daniels v. Pond, 21 Pick. Mass. 367; Clark v. Carleton, 1 N. H. 110; Daniel v. Holland, 4 J. J. Marsh. Ky. 18; Putman v. Wyley, 8 Johns. N. Y. 432; Hoyt v. Gelston, 13 Johns. N. Y.

141.

90 Burser v. Martin, Croke, Jac. 46; Wilbraham v. Snow, 2 Saund. 47, a, b, d.

91 Walker v. Wilkinson, 35 Ala. N. s. 725; Gauche v. Mayer, 27 Ill. 134. The general owner may bring trespass when he is entitled to possession at the time of the injury; as, where he has entrusted the chattel to a bailee "until called for," although he has not "called for" it. Staples v. Smith, 48 Me. 470. Where a trespasser cuts trees upon the land of a tenant for life they become the absolute property of the reversioner, and he may bring trespass. Lane v. Thompson, 43 N. H. 320. And see Strong v. Adams, 30 Vt. 221. 92 Hower v. Geesaman, 17 Serg. & R. Penn. 251.

93 Wilbraham v. Snow, 2 Saund. 47, a, b, d.

94

Soper v. Sumner, 5 Vt. 274; Hart v. Hyde, 5 Vt. 328; Putgam v. Wiley, 8 Johns. N. Y. 432; McFarland v. Smith, 1 Miss. 172; Wilson v. Martin, 40 N. H. 88; Gay v. Smith, 38 N. H. 171; Hammond v. Plimpton, 30 Vt. 333.

support that action, and the general owner may have an action of trespass on the case for the injury done to his reversionary interest.

If the general owner has made a conditional sale and the property is delivered to the vendee, the vendor cannot bring trespass for an injury done before the time stipulated for the payment, as the vendee has the possession coupled with an interest."

Trespass will not lie by a general owner against a bailee for mere abuse of the chattel; though if the bailee destroy the thing and the injury be with force, trespass will lie.

3611. In general, the special owner must have reduced the chattel to his custody before he can maintain trespass for a forcible injury done to it, unless he is a factor or consignee of goods who has an interest in respect of his commissions; this is because the injury is done to his interest.96

When the qualified owner has reduced the chattel to his custody and it is afterward forcibly injured, while his right continues he may maintain trespass against the wrong-doer, even against the general owner himself.

When a chattel has been sold, but no delivery has been made, the vendee is constructively in possession and may maintain trespass for any injury done to it.97

98

Where trespass is brought by one having a special interest in or a lien upon the property against a mere wrong-doer, the plaintiff is entitled to recover the same damages as the general owner, if in possession, would be entitled to for the same trespass, being liable to account over to the general owner for all damages recovered more than the compensation for the injury to his special interest. But where the trespass is committed by the general owner, only the loss inflicted upon the special interest can be recovered.99 In some cases of trespass the defendant is allowed to prove in mitigation of damages that the property has come into possession of the general owner.100

3612. A bailee who has the possession coupled with an interest and a right to the possession for a definite time has exclusively the right to maintain trespass. This applies to cases of hiring 101 and pledges for a time certain.102 A bailee who has a lien and a right of possession until his lien is removed may maintain the action, but this right is not exclusive of the general owner. Thus carriers, factors, pledgees. A mere depositor without hire and without a lien may maintain the action against all except the general owner and those claiming under him. So also may a gratuitous borrower.

3613. A possessor without the consent of the owner may have obtained his possession by legal means, although it may even be against the owner's desire, such as the finder of an article which has been lost; till the owner is discovered the finder has the sole right to it, and he may maintain trespass against any one but the owner.103 But the possessor may have obtained the possession unlawfully, and in that case he can also support this action against any but the legal owner, and the defendant cannot, as in trover, show property in a stranger.10

95 Hurd v. Fleming, 34 Vt. 169.

96 George v. Claggett, 7 Term, 359; Buller, Nisi P. 38.

97 Parsons v. Dickinson, 11 Pick. Mass. 352.

104

98 Carpenter v. Cummings, 40 N. H. 158; Alt v. Weidenberg, 6 Bosw. N. Y. 176. But see Outcalt v. Darling, 1 Dutch. N. J. 443.

99 Nightingale v. Scannell, 18 Cal. 315; Goulet v. Asseler, 22 N. Y. 225.

100 Criner v. Pike, 2 Head, Tenn. 398.

102 Howe v. Keeler, 27 Conn. 538.

101 Hickock v. Buck, 22 Vt. 149.

103 Wilbraham v. Snow, 2 Saund. 47, d; Hendricks v. Decker, 35 Barb. N. Y. 298; Boston v. Neat, 12 Mo. 125.

104 Aiken v. Buck, 1 Wend. N. Y. 466.

See Schermerhorn v. Van Volkenburg, 11 Johns. N. Y. 529; Rotan v. Fletcher, 15 Johns. N. Y. 207; Craig v. Gilbreth, 47 Me. 416.