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Trespass to Land (a).

Trespass to a Private Road. 1. The plaintiff was on the 5th March, 1876, and still is Claim for the owner and occupier of a farm called “Highfield Farm,” in

trespass to

a private the parish of and county of —-.

road.

(a) Every entry upon land in the occupation or possession of another What is a trespass, unless it can be justified in the exercise of some legal or amounts to personal authority or incorporeal right; and such an entry as will con. a trespass stitute a trespass is said to be made when one man throws stones,

upon

land. 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. Harrey, 5 Taunt. 413); 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 Action for placing the incumbrance on the land, and another action for continuing a continuthe thing so erected, for the recovery of damages in the first action does ing tresnot operate as a purchase of the right to continue the injury. (Ilolmes v.

pass. Wilson, 10 Ad. & E. 503 ; Bowyer v. Cook, 4 C. B. 236.)

Who may bring the action. ]– Where the owner of the land is also the Who the occupier of it, he is the proper plaintiff ; but where, as often happens,

proper the land is let on lease or otherwise, then the tenant or occapier 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 when his by the trespasser is of a permanent nature and deteriorates the market. reverable value of the property, so that if the landlord or reversioner were to sionary sell it, it would fetch less money in the market--in such a case the land- interest is lord can sue for the damage done to his reversionary interest either along affected. with the tenant sning 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. Onslon, 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 of tenant premises were out on lease would not be evidence of any right of way as affected. against the reversioner, and thus no permanent injury would be inflicted

have a

When one

Claim for 2. A private road, known as Highfield Lane, runs through trespass to

a portion of the plaintiff's farm. It is bounded upon both a private road.

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 The plain- case of the action by the reversioner for damage to his reversionary tiff must 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 present must have a present possessory title. Therefore, even the owner of the possessory land trespassed on, as the heir-at-law, cannot sue in this action before he title. 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 à 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 joint tenant for digging up and carrying away the soil of the close of which they are or tenant tenants in common; so for turning him or his servants off the land or in common out of the house holden in common; but except where the act complained may sue of really amounts to an eviction of the plaintiff by the defendant, or a the other. 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 now be

was local in its nature, and except by leave, could only be tried in the tried any county where the land was situate ; but now the action may be tried where. anywhere, without regard to the situation of the property. By r. 18, How far

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

with costs, or give such particulars as the Court or a judge may think described

reasonable. It may well be doubted how far, since the abolition of local in the

venues, this rule is in future to be regarded ; but the pleader shonld pleadings. 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. Trespass

Defences.]-1. “ A trespass may be excused altogether if it can be in self

shown that it was committed in self-defence in order to escape from defence. some pressing danger or apprehended peril, or in defence of the posses

sion of a man's goods and chattels or cattle, sheep or domestic animals."

(Addison on Torts, 4th ed. 264.) To retake

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 a defence.

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 3. The defendant may plead that the close or land on which the tres. of the pass 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

Action may

sides by fields of the plaintiff's, and is separated therefrom by a Claim for hedge and ditch.

trespass to a private

road. plaintiff who is in possession is not the true owner. He must either When show that he is himself the right owner, or that some third person is, by denial of whose authority he, the defendant, acted when he committed the trespass the plaincomplained of. (Jones v. Chapman, 2 Ex. 803 ; Purnell v. Young, 3 M.

tiff's & W. 288.) It is sufficient if the defendant proves that he is owner of perty a

proonly part of the close, provided the alleged trespasses were committed

defence. on that part only. (Smith v. Royston, 8 M. & W. 381.)

4. Another defence is that the trespass was committed by the leave Defence of 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.)

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 implicd in the following cases.

Ways of necessity.]—This arises whenever one man grants land to Ways of another to which there is no access except over the land of a stranger, or necessity, over the land of the grantor-in such a case the grantee obtains a right when they of way over the land of the grantor; and if the owner of two closes arise. 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 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. (16.)

Continuous and apparent casements.]-On the grant by the owner of a Continuous particular property of part of that property as it is then used and and appaenjoyed, there will pass by implication to the grantee all those con- rent easetinuous and apparent easements which have been and were at the time ments. 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 por. tion 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 ¥. Brown, 33 L. J. Ch. 258); and the better opinion seems to be that this

common

common

Claim for 3. For a long time prior to the 5th of March, 1876, the trespass on defendant had wrongfully claimed to use the said road for his a private road.

right to all continuous and apparent easements will remain in the Extent of

grantor as well as pass to the grantee. (Pyer v. Carter, 1 H. & N. right.

91-96 ; 26 L. J. Ex. 258; Watts v. Kelson, L. R. 6 Ch. App. 166.) Kinds of Where easements are not created by grant, express or implied, they prescrip- must arise by prescription, and prescription is of three kinds. (1) Pretion.

scription at common law ; (2) Prescription under the Prescription Act

(2 & 3 Wm. 4, c. 71), and (3) Prescription arising from a lost grant. Prescrip- Prescription at common law.]—The right is here claimed by immetion at

morial use, the averment being that the defendant and those whose

estate he hath have enjoyed the right from time whereof the memory of law. man runs not to the contrary. The date of legal memory is now fixed at

the beginning of the reign of Richard I., and what follows from that is The value

this, that although upon proof of an exercise of the right for twenty of a defence of

years, the Court will in the first instance presume the right in favour of

the defendant, yet if the plaintiff can show that there was any period of prescrip

time (since the reign of Richard I.) when the defendant could not tion at

possibly have enjoyed the right, the defence is at an end. Suppose &

right of way is claimed to a house by immemorial user, and proof is given law.

that for thirty years the defendant has enjoyed the right, up to this point the defendant has a primâ facie case, but it is liable to be displaced by the plaintiff proving that the house in question was not more than 100 years old, and could not therefore have existed in the time of Richard I. The consequence is that the defence of prescription by immemorial user is not of much value, except when some right is claimed over lands, the history of which does not go farther back than it can be shown the

defendant enjoyed the right claimed. The pre

Prescription by statute. ]- The statute 2 & 3 Wm. 4, c. 71, gives with scriptive respect to a specified class of easements, a mode of acquisition far more rights certain than that mentioned above. By this statute if a person enjoys given by uninterruptedly and as of right a profit à prendre, or right of common statute. for thirty, or a right of way or watercourse for twenty years next before

the commencement of the suit in which the question of the validity of the easement arises, then the easement is not liable to be defeated by proof that it had its origin on this side of the reign of Richard I.; and when a profit à prendre or right of common has been enjoyed for sixty and a right of way or watercourse for forty years, an indefeasible title

is obtained, unless where it is shown the right in question has been Periods to enjoyed by virtue of some deed. The time during which a party capable be excluded of resisting the claim is an infant, idiot, non compos mentis, feme cocert, from the

or tenant for life, is to be excluded from the computation of the terms of computa

thirty and twenty years; and the time during which any land or water upon, tion of

over, or from which any right of way or watercourse shall have been entime.

joyed, has been held under any term of life or of years exceeding three, is excluded in the computation of the period of forty years, on condition that the claim is resisted by the reversioner within three years after the determination of the term. It must be noticed that this Act is confined to certain classes of easements—rights of way, watercourse, profits à prendre,

rights of common, light, air; and therefore a title based upon a twenty Difference years' enjoyment as of right can only be pleaded with respect to a right in pleading that is ejusdem generis, with one of the rights specified. In pleading

prescription at common law, it is enough to aver that the defendant, law and &c., has enjoyed the right from time immemorial ; no averment as to the statutory nature of the enjoyment is necessary; but in pleading under the Preprescrip- scription Act it must be averred that the right was enjoyed unintertion.

ruptedly during the twenty years' and of right.

The enjoyment meant by the statute is “an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming

common

horses and carriages on the alleged ground that the same was a Claim for public highway, and the plaintiff had frequently warned him trespass on

a private that the same was not a public highway, but the plaintiff's road. private road, and that the defendant must not so use it.

4. On the 5th of March, 1876, the defendant came with a cart and horse, and a large number of servants and workmen, and forcibly used the road, and broke down and removed a gate which the plaintiff had caused to be placed across the same.

5. The defendant and his servants and workmen on the same occasion pulled down and damaged the plaintiff's hedge and ditch upon each side of the road, and went upon the plaintiff's field beyond the hedge and ditch, and injured the crops there growing, and dug up and injured the soil of the road ; and in any case the acts mentioned in this paragraph were wholly unnecessary for the assertion of the defendant's alleged right to use, or the user of the said road as a highway.

The plaintiff claims :-
(1.) Damages for the wrongs complained of.
(2.) An injunction restraining the defendant from any repe-

tition of any of the acts complained of.

to use it without danger of being treated as a trespasser, as a matter The “enof right, whether strictly legal by prescription and adverse user or by joyment” deed conferring the right ; or though not strictly legal, yet lawful to

meant by the extent of excusing a trespass, as by a consent or agreement in writing the statutenot under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract, or licence in case of a plea for twenty years.” (Per Cur. Tickle v. Brown, 4 Ad. & E. 369, 312. See further Clay v. Shackeray, 2 M. & Rob. 244 ; Gayford y. Moffatt, L. R. 4 Ch. 133; Partridge v. Scott, 3 M. & W. 220.) It need not be averred in the case of prescription at common law that the easement continued down to the time of the suit; but this is essential in cases within the

Essential statute. In fact if there were proof of enjoyment for fifty years down

that the to within a few years of action brought, when it ceased there would still

easement not be enough to satisfy the statute. (Parker v. Mitchell, 11 Ad. & E.

continue 788; Lone v. Carpenter, 6 Exch. 825; L. J. 20 Ex. 374.)

to time of Prescription by lost grant.]-The third way of proving prescription is

action. by averring that some owner of the servient tenement, by a grant which is now lost, granted to the defendant or an ancestor the easement Prescripclaimed. Where this is pleaded the jury may, from acts of ownership tion by extending back over not less than twenty years, presume that the lost lost grant grant once existed, and find a verdict for the defendant accordingly. presumed This mode of acquiring an ease ent has advantages its own, and is a after useful one. It is not necessary to aver and prove the continuance of 20 years' the user up to the time of action brought, nor will evidence that the de- user. fendant's right had its origin within legal memory affect it, as in the case of prescription at common law. It is often advisable to claim prescription by each one of the three modes indicated.

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