animals feræ naturæ, he has no more property in them after they have left his soil than in the birds of the air, which may breed in one man's land and devour the crops of another. (6) The only remedy, therefore, for a person whose crops are eaten by wild rabbits, is the capture and destruction of the rabbits. Commoners may destroy rabbits which come upon the common from the adjoining land, not being the lord's land; (c) but they have no remedy against those who breed them. (d) The same law prevails with regard to pigeons; "if they come upon my land I may kill them," but I have no remedy against any one for breeding them. (c) 381. Damage done by intruding dogs.-A man is not, by the common law, considered to have the same valuable property in a dog as in cattle and sheep; and it has been held that if a man's dog goes into his neighbor's garden, and spoils and injures his crops, no action will lie, (f)' unless the dog is of a peculiarly mischievous disposition, so as to be unfit to be at large, and this is known to the master. (g) If the master accompanies the dog, and is himself a trespasser, the damage done by the dog is consequential upon the trespass by the master. () Owners of dogs in Scotland and Ireland have recently been made liable for injuries done to sheep and cattle by their dogs; and all persons who harbor dogs on their premises are deemed to be the owners of the dogs, unless they can prove the contrary, and do show that the dog remained on their premises without their knowledge. (i) (b) Boulton's case, 5 Co. 104a; Cro. Eliz. 547. (c) Cooper v. Marshall, post, ch. 3, S. I. (d) Hinsley v. Wilkinson, Cro. Car. 387. (e) Dewell v. Sanders, Cro. Jac. 490. Bayley, J., Hannam v. Mockett, 2 B. & C. 939. (f) Holt, C. J., Mason v. Keeling, 12 Mod. 336. Brown v. Giles, 1 C. & P. 118. (g) Read v. Edwards, ante. (4) Beckwith v. Shordike, 4 Burr. 2093As to damage done by ferocious dogs, see ante. (i) 25 & 26 Vict. c. 59; 26 & 27 Vict C. 103, ante. 1 I apprehend that the reason upon which the rule of law is predicated that injuries of the character stated by the author are not recoverable of the owner of a dog, is not because of any distinction made by the law as to the quality of property therein, but rather because the injuries are not such as are in accordance with the nature of the animal. For all injuries in accordance with the natural propensities of the animal, the owner is lable without proof of the scienter. The law presumes knowledge. The reason why the owner of cattle is liable for trespasses committed by them, is, because it is their nature to roam. The rule as laid down in May v Burdett, 9 Ad. & El. (N. S) 101, embraces the recognized doctrine of the courts. 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 can not maintain an action for trespasses upon the surface; (k) but if any person digs holes through the surface, and trespasses upon the subsoil, he is then entitled to an action for damages. (7) 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. If the 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 pretense of feigned titles, and forcibly eject their weaker brethren, (2) 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 can not, by the very act of trespass, immediately, and without acquiescence on the part of the landowner, become (4) Cox v. Mousley, 5 C. B. 549. (4) 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 expell.d, see 8 H 6, c. 9; 31 Eliz. c. 11; 21 Jac. 1, c. 15. 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 may be, and can not 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. (9) But the dwellinghouses of strangers can not 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. (r) The rightful owner can not, 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 can not 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)' (p) Browne v. Dawson, 12 Ad. & E. 629. (q) Davison v. Wilson, II 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. (1) Newton v. Harland, I Sc. N. R. 492. (u) Pollen v. Brewer, 7 C. B. N. S., 373. (v) Newton v. Harland, I Sc. N. R. 492. This is true as against a mere trespasser, but when the owner has slept upon his rights and has suffered an intruder to retain possession of the premises for some time, the intruder retaining actual possession, can not be forcibly expelled if he claims to hold under title of any kind. But if the owner re-enters when the trespasser has temporarily quit the possession, he may hold the premises, and can justify under his title and right to the possession. Forcible entry and detainer can not be predicated of a peaceful entry. The entry must be unlawful, and the detainer forcible. People v. Fields, 1 Lans. (N. Y.) 222; Winterfield v. Stauss, 24 Wis. 394; Botts v. Armstrong, 8 Port. (Ala.) 57. There must be violence amounting to a breach of the peace. Com. v. Rees, 2 Brews. (Penn.) 564; Buel v. Frazier, 38 Cal. 693; Butts v. Voorhees, t Green (N. J.) 13; Cruzier v. State, 3 Harr. (N. J.) 206; Com. v. The Keeper of the Prison, I Ash. (Penn.) 140. Or circumstances tending 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 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. (*) Nor do the Highway Acts or the Metropolis Local Management Acts interefere 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. (x) Harvey v. Bridges, 14 M. & W. 442; 1 Exch. 261. Davison v. Wilson, II Q. B. 890. Meriton v. Coombes, 9 C. B. 787; 19 Law J., C. P. 336. Every v. See 27 & Lade v. Shepherd, 2 Str. 1004. 1) Goodtitle v. Alker, 1 Burr. 133. (2) 3 Com. Dig. CHIMIN. (A. 2), 27. to excite fear of such violence, either to the person, property, or enclosure. Hopkins v. Calloway, 3 Sneed. (Tenn.) II; Butts v. Voorhees, 13 N. J. 13; McMinn v. Bliss, 31 Cal. 122; State v. Pollock, 4 Ired. (N. C.) 305. A simple trespass without menace or circumstances of force or terror is not enough. People v. Smith, 24 Barb. (N. Y.) 26; Foster v. Kelsey, 36 Vt. 199. Force is the gist of the action, and is of itself sufficient to sustain it. Botts v. Armstrong, 8 Port. (Ala.) 57. But if the entry is unlawful, force will be implied when the person in possession is thereby dispossessed. Burt v. The State, 3 Brev. (S. C.) 413; Davidson v. Phillips, 9 Yerg. (Tenn.) 93; Childre» v. Black, 9 Id. 317; Vanhook v. Story, 4 Humph. (Tenn.) 59 In this country, generally this matter is regulated by statute, and, while unless the statute in express terms takes away, the common-law remedy may be resorted to, and an action will lie in favor of the party who was in possession, against the persons disposse-sing him, and an indictment also lies therefor. Cruzier v. The State, 3 Harr. (N. J.) 206. For the reasonable use and enjoyment therefore of his own premises the owner may make a carriage-way across the footway. (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 neighbour'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, till 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) SECTION II. OF THE TITLE TO LAND, FENCES, AND BOUNDARY-WALLS. 386. Proof of possession of land and pernancy of the rents is primà 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 aris (a) St. Mary Newington v. Jacobs, L. R., 7 Q. B. 47. (6) Mayor of Northampton v. Ward, I Wils. 114. (c) Holmes v. Wilson, 10 Ad. & E. 503. Bowyer v. Cook, 4 C. B. 236. (d) Jayne v. Price, 5 Taunt. 326. Doe v. Penfold, 8 C. & P. 537. The owner of land adjacent to a highway is, in the absence of express restrictions in his deed, presumed to be the owner of the fee therein, and may maintain trespass or ejectment against any one using the same for any other purpose than that incident to its use as a highway; Adams v. Rivers, 11 Barb. (N. Y.) 396; Jackson v. Hathaway, 15 Johns. (Id.) 447; Knox v. New York, 55 Barb. (Id.) 404; Cole v. Drew, 44 Vt. 49; West Covington v. Freking, 8 Bush. (Ky.) 121; Lancaster v. Richardson, 4 Lans. (N. Y.) 136; thus he may maintain an action of trespass against one who persists in standing before his premises in the highway and using abusive language to him or his family; Adams v. Rivers, ante; he is entitled to the grass growing by the roadside; Cole v. Drew, 44 Vt. 49; to the minerals beneath it; West Covington v. Freking, ante; to the trees growing there; and ordinances or by laws prohibiting injury thereto, do not apply to him; Lancaster v. Richardson, ante.. |