open unenclosed land adjoining the highway, and my beasts enter your land and eat the herbage thereof, and I come freshly and chase them out of your land, you shall not have any action against me, because the chasing them was lawful." (c) So, if my goods have been taken by you, and placed on your land, I may justify my entry on your land for the purpose of retaking them. (d) 1

376. Abuse of a license or authority rendering a person a trespasser ab initio.-When a person has a special privilege or authority to enter upon lands to make a seizure of goods, and he exceeds his authority, by breaking open the outer doors of a dwelling-house, (e) he becomes a trespasser ab initio. All his subsequent acts are trespasses, and he is in the same position as if he was a perfect stranger, acting without any color of excuse or justification. (ƒ) The same result follows whenever a person has a lawful authority to enter lands for any purpose whatever, and he exceeds his authority by doing on the land. what he had no right to do; or by staying longer than he had a right to stay. (g)'

Every trespass upon land is, in legal parlance, an injury to the land, although it consists merely in the act of walking

(c) Catesby, arg. 6 Ed. 4, 7, pl. 18. Goodwin v. Cheveley, 4 H. & N. 631. (d) 2 Roll. Abr. 565, pl. 9.

(e) Post, ch. II, S. I.

Q. B. 146.

(g) Com. Dig. TRESPASS (C), 2. Six Carpenters' Case, 8 Cro. 146a. Reed v. Harrison, 2 W. Bl. 1218. Aitkenhead v.

) Attack v. Bramwell, 32 Law J., Blades, 5 Taunt. 197; post, ch. 14, s. 2.

1 Where cattle stray from the enclosure of the owner to the lands of another, the owner of the cattle may, even though forbidden to do so by the owner of the land, enter the premises to get his cattle, if he can do so peaceably; Richardson v. Anthony, 12 Vt. 273; but he must not let down a fence for the purpose of getting them out; Gardner v. Rowland, 2 Ired. (N. C.) 247; so a person who has property upon the land of another, which was placed there by the consent of the owner, may lawfully enter to carry it away, as bark peeled from trees under an agreement with the owner that he should have the bark for peeling them; Nettleton v. Sykes, 8 Met. (Mass.) 34; so if his property has been wrongfully taken from him, and placed upon the land of another, he may lawfully enter to take it away. Chambers v. Bedell, 2 W. & S. (Penn.) 225.

* If a person who has the right to enter premises for one purpose, enters for another or different purpose, he becomes a trespasser. Abbott v. Wood, I Shep. (Me.) 115: Malcolm v. Spoor, 12 Met. (Mass.) 279. But if the original entry was by the invitation of the plaintiff, and while upon the premises he forcibly injures the personal property of the owner found there, an action can not be brought for the entry, but only for the injury to the property. Dumont v. Smith, 4 Den. (N. Y.)

over it, and no damage is done to the soil or grass. Every injury to the possession of the occupier is, in principle, an injury to the property; and, therefore, if a man is unlawfully turned out of his dwelling-house, that amounts, in point of law, to an injury to the dwelling-house. (h)

Where an action was brought for trespassing on a close and treading down the grass, and the defendant pleaded that he had land lying next the said close, and upon it a hedge of thorns, and he cut the thorns, and they, ipso invito, fell upon the plaintiff's land, and the defendant took them off as soon as he could, and the plaintiff demurred, it was adjudged for the plaintiff; for though a man doth a lawful thing, yet if any damage do hereby befall another, he shall answer for it, if he could have avoided it. (2)

If one man throw stones, rubbish, or materials of any kind, on the land of another, or allows his cattle, poultry, or domestic animals, to go upon another man's land, this is a trespass for which he is responsible in damages, unless he can show that his neighbor was bound by contract or prescription to fence for his benefit. (k) To pour water out of a pail into another man's yard, or to fix a spout so as to discharge water upon another's land, or to suffer filth to ooze through a boundary-wall and to run over another's close or yard without his leave or permission, is a trespass, unless a right of way over the adjoining close, or a right to discharge water upon it, or a right for the passage of waste-water and refuse through it, has been gained. (/)1

(h) Meriton v. Coombes, 9 C. B. 972; Keeling, 1 Ld. Raym. 608; 12 Mod. 336. 19 Law J., C. P. 336.

(2) Mich. 6, E. 4. p. 7. pl. 18. (k) Williams, J., Cox v. Burbidge, 13 C. 3., N. S. 438; Holt, C. J., Mason v.

Dawtry v. Huggins, Clayton, 32. Vin.
Abr. TRESPASS (B).

(4) Reynolds v. Clarke, 2 Ld. Raym. 1399.

The distinction between a direct, forcible act, and one that is merely consequential, must be kept in mind. Thus, while if A erects a spout so that water turned into it from his premises falls directly upon the land of B, this is a trespass, but if the spout is so erected that the water turned into it falls first upon the land of A, and then escapes upon the land of B, this is not a trespass, for it is lawful for A to erect a spout upon his own land, so that the water falls upon them, if he takes care to prevent it from escaping upon the premises of another, but if, after the water falls from the spout upon his land, it runs upon the land of B, this is a consequence of A's act in erecting the spout there and using it to carry away waste water, and, although a direct result of the original forcible act, yet, as the original force is spent upon the land of A the subsequent escape of the water upon the lands of B is a

377. Trespasses by cattle and domestic animals.-If a man's cattle, sheep, or poultry, or any animals in which the law gives him a valuable property, trespass upon another's close, the owner of the animals is responsible for the trespass and consequential damage, unless he can show that his neighbor was bound to fence, and had failed so to do. (m)1 And it matters not whether the animals be at the time in his own immediate care or charge, or under the care of his servants, or in the custody of a stranger. In this last case, the stranger may be sued as well as the owner for the trespass. (7) But if my servant, without my knowledge, takes my beasts and puts them in another's land, my servant is the trespasser, and not I; for by

(m) Sagrill v. Milward, 21 Hen. 6, p. 33. pl. 20. Lee v. Riley, 34 Law J., C.

P. 212.

(n) 2 Roll. Abr. 546, pl. 20. Dawtry v. Huggins, Clayt. 32, pl. 56.

mere consequence of the original forcible act, and is only compensable in an action on the case.

If A builds a house so that the eaves project over the land of B, so that when the rain comes it falls upon B's land, trespass will not lie against A therefor, for although A caused the house to be erected with the projecting eaves, yet he does not cause the rain to fall, nor does it fall under his direction or control. The injury sustained by B is not directly from the act of A, but in consequence of his act, as a result thereof, hence, for such injuries, ease, and not trespass, is the proper remedy. Aiken v. Benedict, 39 Barb. (N. Y.) 400; Ashley v. Ashley, 6 Cush. (Mass.) 70.

Wells v. Howell, 19 Johns. (N. Y.) 385; Van Leuven v. Lyke, 4 Den. (N. Y.) 127. And even though a person turn his cattle into a highway, in pursuance of a by-law of the town, yet if they escape on the land of another, he will be liable for the damage, unless he shows that they entered the plaintiff's premises through the insufficiency of his fence. White v. Scott, 4 Barb. (N. Y.) 56; Cowles v. Balzar, 47 Id. 562. And where animals trespass upon the land of another, through a defect in the fence of their owner, the person on whose land they escape may lawfully turn them into the highway, and if they are lost, he is not responsible. But if he wantonly drives them off upon the highway to a distance, he will be responsible for their loss, or for any injury by him inflicted thereon. Knour v. Wagoner, 16 Ind. 414. If animals belonging to several different owners trespass upon another's land, an action does not lie against them jointly therefor, but separate actions must be brought against each owner for the injury done by his beast. Partenheimer v. Van Orden, 20 Barb. (N. Y.) 479; Van Steinburgh v. Tobias, 17 Wend. (N. Y.) 562 ; Denny v. Connell, 9 Ind. 72; Auchtmuty v. Ham, 1 Den. (N. Y.) 495. And, in the absence of proof as to how much damage each animal did, the presumption is that each did an equal damage. Partenheimer v. Van Orden, ante. But this presumption is subject to being controlled by proof, and is in a measure dependent upon the nature, habits, and condition of the animals themselves. Thus in a case where two dogs of different sizes were found killing sheep, in the absence of direct proof it was held that the jury were justified in finding that the biggest dog killed Wilbur v. Hubbard, 35 Barb. (N. Y.) 303.

the most.

his willful dealing with the beasts without any authority from. me, he gains a special property in them for the time, and for this purpose they become his beasts. (0) But if a wife so deals with her husband's cattle, the husband himself is the trespasser, for his wife can gain no special property in them as against the husband. (p) A commoner who puts his beasts upon a common which is not inclosed, is bound at his peril to see that his beasts do not stray from the common and trespass upon another man's land. (g)

378. Trespasses from want of fences and from defective fences. Where the plaintiff himself has contributed to the injury of which he complains he has no ground for seeking compensation in damages. If, therefore, a man is bound by contract or prescription, to repair a fence between my land and his, and he neglects to repair, and by reason thereof my beasts get on to his land, this is a good justification to an action of trespass brought by him. (r) In such a case it is lawful for me to go into my neighbor's land after my beasts, and chase them. back into my own land; and I may plead this as a justification for the trespass, because it was rendered necessary by the default of my neighbor. (s)1

379. Who is bound to fence and repair fences.-Whenever two persons have adjoining fields, and no hedge or fence between them, each must take care that his own beasts do not trespass on his neighbor, (†) unless one proprietor has acquired a right or title, by grant or prescription, to have the boundaryfence between his close and that of the adjoining proprietor maintained and repaired at the expense of such adjoining proprietor. (u) "Every man must use his own land so as thereby not to hurt another; and as, of common right, one is bound to keep his cattle from trespassing on his neighbor, so he is bound to use anything that is his so as not to hurt another by such uses. If, therefore, a vendor sells a piece of

(0) 2 Roll. Abr. TRESPASS, 553, pl. 25. (p) 2 Roll. Abr. TRESPASS, 533. pl. 2. (7) 20 Ed. 4, fo. 1ob, cited in Read v. Edwards, 34 Law J., C. P. 32.

(r) 2 Roll. Abr. TRESPASS, 565, pl. 3, citing 19 Hen. 6, 34; 39 E. 3. 3b.

(s) Ib. pl. 4.

(t) Bayley, J., Boyle v. Tamlin, 6 B. & C. 337; Dyer, 372b.

(u) See Barber v. Whiteley, 34 Law J., Q. B. 212.

1 Richardson v. Anthony, 12 Vt. 273; Gardner v. Rowland, 2 Ired. (N. C.) 247 Nettleton v. Sykes, 8 Met. (Mass.) 34.

pasture lying open to another piece of pasture of which he is po-sessed, the vendee is bound to keep his cattle from running into the vendor's piece." (x) If a landowner, who has land abutting upon a highway, neglects to fence the land from the highway, so that cattle strayed from the high-road and injure his crops, he can not immediately distrain the beasts' damage feasant, or treat the owner of the beasts as a trespasser, but must either drive them out himself, or allow a reasonable time to the drovers in charge of them to get them out of the land.

But if the beasts are not lawfully using the highway, if they have strayed away from the owner or his servants, and are trespassing upon the public thoroughfare, and pass from thence on to the adjoining uninclosed land, this is a trespass for which the owner of the beasts is responsible. (2) And whenever one landowner is bound to maintain and repair a fence for the benefit of the adjoining landowner, and cattle escape out of the land of the latter, and trespass upon the land of the person who ought to have kept up the fence, it is no excuse that the fences were out of repair, if the beasts were trespassers in the place from whence they came. If it be a close, the owner of the cattle must show an interest or a right to put them there. If it be a way, he must show that he was lawfully using the way. (a)'

380. Destruction of crops by rabbits and pigeons.-If a man encourages the growth of wild rabbits upon his land, and forms "coney burrows" there, and the rabbits stray from his land to the land of his neighbor, this is no trespass for which the breeder of the rabbits is responsible, for when they have left his land they are not then his rabbits doing damage. Being

(x) Tenant v. Goldwin, 6 Mod. 314. (1) Goodwin v. Cheveley, 4 H. & N. 631; 28 Law J., Exch. 298.

(z) 2 Roll. Abr. 565, pl. 7. Dovaston v. Payne, 2 H. Bl. 528.

(a) Dovaston v. Payne, ut sup. ; Anon. 3 Wils. 120.

In this country the common-law rule requiring the owners of cattle to maintain fences to keep them in, has not obtained, and the matter is generally regulated by statute in the several states. Seeley v. Peters, to Ill. 130; Brady v. Bull, 14 Md. 317; Wayner v. Bissell, 3 Iowa, 396; Wilder v. Wilder, 38 Vt. 678. But the duty may be imposed by covenant or prescription, and where it is, the same liability attaches a- under the common-law rule, and the person on whom the duty rests will be liable for all damages resulting from his neglect. Holden v. Shattuck, 34 Vt. 336; Wills v. Howell, 19 Johns. (N. Y.) 385; Cowles v. Balzar, 47 Barb. (N. Y.) 562 ; State v. Lamb, 8 Ired. (N. C.) 220; Jones v. Witherspoon, 7 Jones, 555.