2. On the 1st of March, 1877, the defendant wrongfully Claim for took a horse belonging to the plaintiff out of the plaintiff's trespass and injury possession, namely, out of the plaintiff's stable, and rode the said horse for a long distance, namely four miles, at full speed, whereby the said horse became broken-winded and was rendered wholly useless to the defendant. 3. The plaintiff claims £30 damages. Statement of Defence. to a horse. 1. The defendant says that he had a general permission and Defence. authority from the plaintiff to ride the said horse at such times as he was not required for the plaintiff's own use, and the defendant when he took the said horse from the plaintiff's stable as alleged in the 2nd paragraph of the statement of claim and Leave and rode him as in the next paragraph mentioned, did so in the licence. exercise of the right he had by virtue of the said permission and authority. intentional. (Colwill v. Reeves, 2 Camp. 575.) The action lies for When the taking goods under an illegal distress, as where no rent is due or things action of privileged from distress are seized, but does not lie for irregularities trespass where the distress itself was lawful. (See Distress.) So for beating lics. a horse or other animal belonging to the plaintiff. (Slater v. Swan, 2 Str. 872.) So for the complete destruction of a thing as well as an injury to it. (Co. Lit. 57, a.) But the action does not lie for an indirect interference with the owner's possession, as by locking the door of a room or place in which the goods are placed or otherwise preventing the plaintiff's having access to them. (Hartley v. Moxham, 3 Q. B. 701; Thoroughgood v. Robinson, 6 Q. B. 769.) When not. The plaintiff must have the actual or constructive possession of the Plaintiff goods at the time of the trespass to be able to maintain the action, or at must have least a legal right to the possession. (Balme v. Hutton, 9 Bing. 471, 477.) actual or A special or temporary right to the present possession, as that of a hirer construcor carrier of goods or a bailee, who has actual possession at the time of the tive postaking, injury, or destruction is sufficient to support the action (Collwill session. v. Reeves, supra), even against the absolute owner or bailor. (Brierly Fact of v. Kendall, 17 Q. B. 936; Turner v. Hardcastle, 31 L. J. C. P. 193.) The fact of possession is primâ facie evidence of the right to the possession, possession and is therefore sufficient to maintain the action against a wrongdoer prima who cannot show a better title, or authority under a better title. (Elliot facie eviv. Kempe, 7 M. & W. 212.) Therefore, except in the case of an authority under a better title a defendant will not be allowed to set up the jus tertii to rebut the title of the person in possession at the time of the trespass. But if the plaintiff had not the actual possession at the time, the defendant may set up the jus tertii. (Ib.) See generally Armory v. Delamirie, 1 Smith L. C. 7th ed. 357. The action lies by one tenant in common of a chattel against the other or others for an injury, &c., to such chattel. By 3 & 4 Wm. 4, c. 42, s. 29, the jury may in this action give damages in the nature of interest over and above the value of the goods. dence of right to possession. Defence to claim for trespass to a horse. Reply. Claim for 2. The defendant denies the allegations contained in the 2nd paragraph of the statement of claim so far as they allege that the defendant rode the said horse for four miles at full speed, and also that the said horse became thereby brokenwinded. The defendant rode the said horse at a moderate pace and in a careful manner. If the said horse is now wholly useless to the defendant, he has become so from some other cause than his having been ridden by the defendant. Reply. 1. The plaintiff joins issue on 2nd paragraph of the statement of the defence. 2. As to the allegation in the 1st paragraph the plaintiff says that before the trespasses in the statement of claim mentioned he revoked the permission and authority previously given to the defendant to ride the said horse as in the said paragraph mentioned. Action for Trespass to Chattels. 1. The plaintiff is a medical student residing at No. —, Gower Street, in the county of Middlesex. The defendant is a lodging-house keeper residing at No., Euston Road. 2. Up to and on the 4th of January, 1877, the plaintiff was the occupier of furnished lodgings in the defendant's house, and he had at the said lodgings various articles of property, including a portmanteau containing wearing apparel and a box containing a large number of books. 3. On the said 4th of January the defendant wrongfully removed from the said apartments the said portmanteau and box with their contents, and took them into the part of the said house occupied by him and placed them in a wet and damp cellar, whereby the said wearing apparel and books became mildewed and damaged. 4. The defendant also forced open the lock of the said portmanteau and took out several articles of wearing apparel which he has since regularly worn, and the same have become greatly damaged and deteriorated in value. The plaintiff claims £ damages. Trespass to Land (a). Trespass to a Private Road. 1. The plaintiff was on the 5th March, 1876, and still is the owner and occupier of a farm called "Highfield Farm," in the parish of and county of Claim for trespass to a private road. What amounts to a trespass upon land. (a) Every entry upon land in the occupation or possession of another is a trespass, unless it can be justified in the exercise of some legal or personal authority or incorporeal right; and such an entry as will constitute a trespass is said to be made when one man throws stones, rubbish, or materials of any kind on the land of another, or allows his cattle, poultry, or domestic animals to go thereon. So to pour water out of a pail on to another man's yard; to fix a spout so as to discharge water on to another's land; to suffer filth to ooze through a boundary wall; to run over the close of another; so to drive a nail into a neighbour's wall, or to place anything against the wall; so to shoot on to his land—all these are acts of trespass on land for which an action will lie; and it may be averred against the defendant in the statement of claim that he broke and entered the plaintiff's close and committed the trespass complained of. The action will lie though the trespass was unintentional, There may and though no damage to the plaintiff was really done; but in the latter be a trescase the damages given by the jury would probably only be nominal. pass though If, however, the entry is made after notice and warning not to trespass, it was or is a wilful and impertinent intrusion on another's privacy, then exem- unintenplary damages will be recoverable (Merest v. Harvey, 5 Taunt. 443); tional, and and where there is a continuing trespass, as where a man throws a heap no damage of stones or builds a wall or plants posts or rails on his neighbour's done. 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 trespass 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 does not operate as a purchase of the right to continue the injury. (Holmes v. Wilson, 10 Ad. & E. 503; Bowyer v. Cook, 4 C. B. 236.) Action for a continuing tres pass. Who the proper when his reversionary interest is affected. Who may bring the action.]-Where the owner of the land is also the occupier of it, he is the proper plaintiff; but where, as often happens, the land is let on lease or otherwise, then the tenant or occupier and not plaintiff. the landlord has the right of suing for the trespass, which is an injury to the possession in him. If, however, the reversionary interest of the Landlord, landlord is in any way injured by the trespass, as where the injury done by the trespasser is of a permanent nature and deteriorates the marketable value of the property, so that if the landlord or reversioner were to sell it, it would fetch less money in the market--in such a case the landlord can sue for the damage done to his reversionary interest either along with the tenant suing for the injury done to his possessory interest or by himself. Suppose a trespass on land out on lease and an injury to trees. There the lessor might sue for the damage done to the body of the tree, the lessee for the loss of shade and fruit (Bedingfield v. Onslow, 3 Lev. 209); but the reversioner could not maintain an action against a stranger But not for entering upon land in the occupation of his lessee, and with carts and when the horses trampling down the soil and grass, though the entry be made in enjoyment the exercise of an alleged right of way, as such an act done while the premises were out on lease would not be evidence of any right of way as against the reversioner, and thus no permanent injury would be inflicted of tenant affected. Claim for trespass to a private road. The plaintiff must have a present possessory title. When one joint tenant or tenant in common may sue the other. Action now be may tried any where. How far 2. A private road, known as Highfield Lane, runs through a portion of the plaintiff's farm. It is bounded upon both on the reversion. (Baxter v. Taylor, 4 B. & Ad. 75.) Where the plaintiff claims damages as a reversioner for an injury done to his reversion, the statement of claim must allege it to have been done to the damage of the reversion, or must state an injury of such a permanent nature as to be necessarily prejudicial thereto, and the want of such an allegation is even cause for arresting the judgment. (Baxter v. Taylor. 4 B. & Ad. 74; Jackson v. Pesked, 1 M. & S. 234.) Passing by the case of the action by the reversioner for damage to his reversionary interest, which, after all, is not an action for trespass, the rule must be observed that in order to maintain an action for trespass the plaintiff must have a present possessory title. Therefore, even the owner of the land trespassed on, as the heir-at-law, cannot sue in this action before he has entered into possession of his land; but after entry the right of possession relates back so as to support an action against a wrongdoer for a trespass committed at an antecedent period. (Barnet v. Earl of Guildford, 11 Exch. 19; 24 L. J. Ex. 281.) An action is maintainable by one tenant in common against his co-tenant or the licensee of the latter for digging up and carrying away the soil of the close of which they are tenants in common; so for turning him or his servants off the land or out of the house holden in common; but except where the act complained of really amounts to an eviction of the plaintiff by the defendant, or a destruction of some portion of the land, an action of trespass will not lie by one joint tenant or tenant in common against another, or for any matter done on the land held in common. (Cubitt v. Porter, 8 B. & C. 257.) The owner of the soil may have an action of trespass against one entitled to rights over the surface for acts of trespass not justified by the exercise of such rights. (Earl of Lonsdale v. Rigg, 26 L. J. Ex. 196.) Thus the owner of land subject to a highway over it may maintain an action for any act amounting to a trespass upon it other than a user of it as a highway. (Lade v. Shepherd, 2 Str. 1004.) Before the abolition of local venues by the Judicature Act this action was local in its nature, and except by leave, could only be tried in the county where the land was situate; but now the action may be tried anywhere, without regard to the situation of the property. By r. 18. T. T., 1853, in actions for trespass to land the close or place in which, &c., must be designated in the declaration by name or abuttals or other locus in quo description, in failure whereof the plaintiff may be ordered to amend must be described in the pleadings. Trespass in selfdefence. To retake a defence. with costs, or give such particulars as the Court or a judge may think reasonable. It may well be doubted how far, since the abolition of local venues, this rule is in future to be regarded; but the pleader should always give some description-and so far as it goes, a correct one-of the whereabouts of the locus in quo in his statement of claim. Defences.]-1. "A trespass may be excused altogether if it can be shown that it was committed in self-defence in order to escape from some pressing danger or apprehended peril, or in defence of the possession of a man's goods and chattels or cattle, sheep or domestic animals." (Addison on Torts, 4th ed. 264.) 2. A man is also justified in trespassing on the land of another, where, cattle when owing to the neglect of that other in not keeping in a proper state of repair fences which it was his duty to maintain, his cattle have got on to the other's land. In that case neither the person who goes to take the cattle away nor the owner of the cattle is guilty of any trespass. (2 Roll. Abr. Trespass, 565, pl. 3.) Denial of the 3. The defendant may plead that the close or land on which the trespass was committed was not the soil and freehold of the plaintiff, and plaintiff's then the plaintiff's title to the property is in issue, and also his right to property. the possession; but it is not enough for the defendant to show that the sides by fields of the plaintiff's, and is separated therefrom by a claim for hedge and ditch. plaintiff who is in possession is not the true owner. trespass to a private road. When denial of the plaintiff's pro perty a defence. Defence of 4. Another defence is that the trespass was committed by the leave and licence of the plaintiff. Leave given by parol can generally be leave and withdrawn at any time, and after it is withdrawn the defendant cannot licence. justify any act under it; but whenever a person has been induced to lay out money upon the land of another, upon the faith of a verbal agreement, that in consideration of the expenditure the person laying out his money shall enjoy an easement, privilege, or profit upon the land, the privilege could not at equity, and now cannot at all, be withdrawn by the landlord without making full compensation for the expenditure. (Gale on Easements, 5th ed. 76–83.) Ways of necessity, when they arise. 5. The most common defence to an action for trespass is that the Defence defendant has obtained an easement, as a right of way upon and over that defensome portion of the plaintiff's land, and that it was in the exercise of dant has such right that the trespass complained of was committed. An easement an easeis created either by grant, or it arises by prescription. Again, easements ment. created by grant are either created by express grant, which must be by deed, or by implied grant. In the former case there can be little diffi- How culty; the pleader sets out the terms of the easement granted, and shows easements by proper averments on the face of his pleading that the act complained arise. of was an act within the right granted. Grants of easements are implied in the following cases. Ways of necessity.]-This arises whenever one man grants land to another to which there is no access except over the land of a stranger, or over the land of the grantor-in such a case the grantee obtains a right of way over the land of the grantor; and if the owner of two closes having no way to one of them but over the other, parts with the latter without reserving the way, it will be reserved to him by law as a way of necessity. (East Co. Rail. Co. v. Darling, 5 C. B. N. S. 821; 22 L. J. C. P. 202; Gayford v. Moffatt, L. R. 4 Ch. App. 133.) But a way When deof necessity is said to be commensurate only with the existence of such termine. necessity, so that where a person who has a way of necessity over the lands of another is able to approach the land for which the way was used by passing over his own soil, the way is extinguished. (Holmes v. Goring, 2 Bingh. 76.) It, however, revives again when the necessity for it revives. (Pearson v. Spencer, 1 B. & S. 584); and easements of necessity are not extinguished by unity of ownership. (lb.) Continuous and apparent easements.]-On the grant by the owner of a particular property of part of that property as it is then used and enjoyed, there will pass by implication to the grantee all those continuous and apparent easements which have been and were at the time of the grant used by the owner of the entirety for the benefit of the parcel granted. If, therefore, a landed proprietor has annexed peculiar qualities and incidents to different parts of his estate, so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or for means of access or for beneficial use and occupation, the qualities or incidents thus manifestly imprinted upon the property pass, with the lands to which they are annexed, to the grantees as accessorial to the beneficial use and enjoyment of such lands (Suffield v. Brown, 33 L. J. Ch. 258); and the better opinion seems to be that this Continuous and appa rent ease ments. |