The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar (¿). and con Trespass is the wrongful disturbance of another person's Trespass possession of land (j) or goods. Therefore it cannot be version. committed by a person who is himself in possession; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) (i) Cp. Holland, "Elements of Jurisprudence," 4th ed. pp. 162–5. (j) Formerly it was said that trespass to land was a disturbance not amounting to disseisin, though it might be "vicina disseisinae," which is explained by "si ad com- Alterna tive reme extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess (k); on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession. In the later history of common law pleading trespass dies. and conversion became largely though not wholly interchangeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover (7), so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may (k) See Smith v. Milles, 1 T. R. 480, and note that "constructive possession," as used in our books, includes (i.) possession exercised through a servant or licensee; (ii.) possession conferred by law, in cer tain cases, e. g. on an executor, be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (m), but while it exists we must take account of it. II.-Trespass. shall be Trespass may be committed by various kinds of acts, of What which the most obvious are entry on another's land (tres- said a pass quare clausum fregit), and taking another's goods trespass. (trespass de bonis asportatis) (n). Notwithstanding that trespasses punishable in the king's court were said to be vi et armis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. Every invasion of private property, be it ever so minute, is a trespass" (o). There is no doubt that if one walks across a stubble field without lawful authority or the occupier's leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor (p), a licence (as to which more 66 (m) See per Thesiger L. J., 4 Ex. Div. 199. (n) The exact parallel to trespass de bonis asportatis is of course not trespass qu. cl. fr. simply, but trespass amounting to a disseisin of the freeholder or ouster of the tenant for years or other interest not freehold. 66 (0) Entick v. Carrington, 19 St. Tr. 1066. Property" here, as constantly in our books, really means possession or a right to possession. (p) As a matter of fact, the Dartmoor hunt has an express licence from the Duchy of Cornwall. Quaere concern ing balloons. presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner's will thus expressed. But even so, persons using the land are no more than "bare licensees," and their right is of the slenderest. It has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass "to interfere with the column of air superincumbent on the close," and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour's land (q). Fifty years later Lord Blackburn inclined to think differently ("), and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one's land in a balloon; but this appears irrelevant to the pure legal theory. Tres (a) Pickering v. Rudd (1815) 4 Camp. 219, 221. (r) Kenyon v. Hart (1865) 6 B. & S. 249, 252, 34 L. J. M. C. 87; and see per Fry L. J. in Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q. B. Div. 904, 927, 53 L. J. Q. B. 449. It may be otherwise, as in that case, where statutory interests in land are conferred for special purposes. passes clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man's land: but if it is not a trespass in law to have the balloon there at all, one does. not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord Ellenborough's dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of "innocent passage" for projectiles over the heads and lands of the Queen's subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised. Trespass by a man's cattle is dealt with exactly like trespass by himself; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject (s). Trespass to goods may be committed by taking posses- Trespass to goods. sion of them, or by any other act "in itself immediately injurious" to the goods in respect of the possessor's (8) Chap. XII. below. |