them upon the plaintiff's land; the plaintiff having first brought them upon the defendant's premises, and then, without permission, having left them there. The entry is lawful.1

A sixth case is where a man's goods, without his act, have got upon the land of another. In such a case, the owner of the goods may enter and take them. For example: The defendant enters upon the plaintiff's land to get apples, which, by the action of the wind, have been blown over the line, from the defendant's trees into the plaintiff's close. The defendant is not liable. Again: The defendant enters upon the plaintiff's land to get his own goods which the plaintiff has wrongfully taken and put there. This is lawful; though it would have been otherwise had the plaintiff come properly into possession of the goods.*

2

A seventh case is where a person enters the premises of another to save life or to succor a beast in danger. Such an act is not a trespass; but it is said that the case would be different if the entry was made to prevent a person from stealing the owner's beast, or to prevent cattle from consuming his corn.5 The distinction made between the cases is that in the former case the loss of the animal would be irremediable, that is, that particular animal (which might be very valuable) could not be replaced;

1 Cole v. Maundy, Viner's Abr. Trespass, 516. See other cases there referred to.

2 Millen v. Fawdry, Latch, 119, 120. It would be otherwise if the defendant should shake the trees. Bacon's Abr. Trespass, F. The action of the wind would, it seems, be immaterial if the branches overhung the plaintiff's land; for that would itself be a nuisance. Comp. Penruddock's Case, 5 Coke, 100 b. The defendant should be allowed to enter only when he is entirely in the right, as where the apples are blown over the fence into the plaintiff's grounds.

8 Viner's Abr. Trespass, 1 (A); L. C. Torts, 382. 4 L. C. Torts, 381.

5 Bacon, ut supra.

while in the latter case, the animal might be recovered from the thief, or the corn replaced by purchase or by a new crop all corn being substantially alike. The distinction, however, sounds mediæval.

An eighth case is where a man creates, or after notice continues, a nuisance upon his premises, to the peculiar injury of his neighbor. In such cases the latter may enter and abate the nuisance. For example: The defendant enters upon the plaintiff's premises, and removes the eaves of a shed, which overhang the defendant's land and in rainy weather drip upon his premises. This is no breach of duty to the plaintiff.1

A ninth case is where an entry has been made upon land of another by reason of necessity, without the fault of the person entering. Such an entry is justifiable. For example: The defendant runs into the plaintiff's premises to escape a savage animal, or the assault of a man in pursuit of him. The defendant is not liable.2 Again: The defendant enters upon the plaintiff's premises to pass by a portion of the highway which at this point is wholly flooded, but without the act of the defendant. The entry is justifiable.

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It has already been seen that a trespass to property consists in an unlawful entry of land or taking of goods, and a trespass by imprisonment in an unlawful arrest. There is one case, however, in which, by reason of sub

1 Penruddock's Case, 5 Coke, 100 b; L. C. Torts, 383, where various distinctions as to such cases are mentioned.

2 Year Book, 37 Hen. VI. p. 37, pl. 26.

8 Absor v. French, 2 Show. 28.

* Where A's goods are unlawfully sold and delivered by B, must the former make demand for them before he can sue for the trespass? The question is not so important now as formerly, for suit is more gen. erally brought in such cases for conversion. See post, p. 249.

sequent acts, a person may be treated as a trespasser notwithstanding the lawfulness of the entry or taking possession, or of the arrest; the result thus being to deprive the party of the justification of the lawfulness of the original act, and, by a fiction of law, to make him a trespasser ab initio. According to this fiction, one who has taken possession of goods, or entered upon land, by virtue of a license of the law, becomes a trespasser ab initio (notwithstanding the lawfulness of the levy or entry), where afterwards, while acting under the license, he commits an act which in itself amounts to a trespass.1 For example: The defendant, a sheriff, remains an unreasonable length of time in the plaintiff's house in possession of goods taken by him in execution. He is a trespasser ab initio.2

But, in order to become a trespasser ab initio, the subsequent act must, it has been held, be a technical trespass, or at least show a purpose to make use of the license as a mere cover for a wrongful act. If this is not the case, if the entry was in good faith, and the subsequent act was not a trespass, the party is not to be treated as a trespasser from the beginning, though the act committed be wrongful and subject him to liability. For example: The defendant, an officer, enters upon the plaintiff's premises by virtue of a lawful writ, to make a levy for debt. While there, in the course of his business as an officer, he wrongfully extorts money from the plaintiff. He is not a trespasser from the beginning of his entry, though the extortion was a breach of duty for which he would be liable in damages; extortion not being a trespass. Again (an English example): The defendant

8

1 Six Carpenters' Case, 8 Coke, 146; L. C. Torts, 386.

2 Ash v. Dawnay, 8 Ex. 237; Rowley v. Rice, 11 Met. 337.

8 Shorland v. Govett, 5 B. & C. 485. See Six Carpenters' Case, supra. But compare Holley v. Mix, 3 Wend. 350. If the entry under

refuses to drop a distress on the plaintiff's goods, upon due tender by the plaintiff of the rent due. The defendant is not a trespasser.1

These examples, on consideration, will show the importance of the doctrine of trespass ab initio. If the person's conduct make him obnoxious to this doctrine, it follows (probably) that all acts done, such as, in the case of an officer, levies made, intermediate the entry and the trespass, are void; since, his entry being a trespass, he could not, according to general principles of law, thereafter do an act against the will of the occupant which would be legal.2 Besides, he would be liable for the entry as well as the after acts. The doctrine does not, therefore, concern the form of remedy alone.

This doctrine of trespass ab initio applies, however, only against persons who have entered or taken goods by license of law. A person cannot treat as a trespasser from the beginning one to whom he has himself given permission to enter or take his goods, whatever be the nature of his subsequent acts. For example: The defendant, by permission of the plaintiff's wife, enters the plaintiff's house in his absence, and while there wrong

the writ was merely to cover the purpose to extort, there would probably be a trespass ab initio. Comp. Grainger v. Hill, 4 Bing. N. C. 212, ante, pp. 101, 166. That, it seems, suggests the true distinction. Six Carpenters' Case, supra. See also ante, p. 170, note 4.

1 West v. Nibbs, 4 C. B. 172.

2 Compare Ilsley v. Nichols, 12 Pick. 270, denying certain dicta of the books. Ilsley v. Nichols decides that a levy made by breaking open the outer door of an occupied dwelling-house (a house is a man's castle) is invalid, and the officer is liable for the value of the goods taken as well as for the unlawful entry. The same result should in principle follow if, by an act subsequent to the entry, he become a trespasser from the beginning.

* Six Carpenters' Case, supra; Esty v. Wilmot, 15 Gray, 168; Allen v. Crofoot, 5 Wend. 506.

fully gets possession of papers, and carries them away. This does not make him a trespasser ab initio.1

As where the entry was made in good faith the subsequent act must amount to a trespass, it becomes necessary to ascertain somewhat precisely the technical signification of the term. It is difficult to define a trespass, but the following will serve to indicate the proper meaning of the term: (1) Any wrongful intended contact with the person is a trespass. (2) Any wrongful entry upon the plaintiff's land or interference with the plaintiff's possession of personalty is a trespass. (3) Any wrongful act committed directly with force is a trespass, though no physical contact with the person of the plaintiff or with his property be produced; as in the case of an imprisonment without contact, or the firing a gun under the plaintiff's window, to alarm the inmates of his house. In cases like these, force is said to be implied. Upon the same ground, the seduction of the plaintiff's wife, daughter, or servant might perhaps be considered as a trespass, and the act was formerly so treated by the courts; the consent given was not the plaintiff's consent. But the present view is different.3

4

2

On the other hand, (1) a mere non-feasance (that is, a pure omission) cannot be a trespass; (2) nor can there be a trespass where the matter affected was not tangible, and hence could not be immediately injured by force, as in the case of an injury to reputation or health; (3) nor can there be a proper trespass where the right affected is incorporeal, as a right of common or way; (4) nor where the interest injured exists in reversion or re

1 Allen v. Crofoot, 5 Wend. 506.

2 Tullidge v. Wade, 3 Wils. 18; 1 Chitty, Pleading, 126, 133. 8 Macfadzen v. Olivant, 6 East, 387. Chitty, however, prefers the old doctrine. 1 Pleading, 133.

4 Six Carpenters' Case, 8 Coke, 146.