right so to divert and withdraw the water, by means of their canal, upon the ground, that it was a small part only (about one fourth) of the water, to which, as mill owners on the lower dam, they were entitled; and that there was no damage whatsoever done to the plaintiff's mill by this diversion of the water.

Upon the coming in of the answer a preliminary question was suggested by the Court at the hearing, which was argued by C. S. Daveis for the plaintiff, and by P. Mellen and Longfellow for the defendants.

STORY, J. The question, which has been argued upon the suggestion of the Court, is of vital importance in the cause; and, if decided in favor of the plaintiff, it supersedes many of the inquiries, to which our attention must otherwise be directed. It is on this account, that we thought it proper to be argued, separately from the general merits of the

cause.

The argument for the defendants then presents two distinct questions. The first is, whether, to maintain the present suit, it is essential for the plaintiff to establish any actual damage.

As to the first question, I can very well understand, that no action lies in a case where there is damnum asbque injuria, that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand, how it can correctly be said, in a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed by some perceptible damage, which can be established, as a matter of fact; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law, that, wherever there is a wrong, there is a remedy to redress it; and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages. A fortiori, this doctrine applies, where there is not only a violation of a right of the plaintiff; but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character, not merely of a violation of a right, tending to diminish its value, but it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can protect his right from such a violation by an action, it is plain, that it may be lost or destroyed, without any possible remedial redress. In my judgment the common law countenances no such inconsistency, not to call it by a stronger name. Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than, whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication

1 See The Mayor of Lynn, &c. v. Mayor of London, 4 T. R. 130, 141, 143, 144; Comyns Dig. Action on the Case, B. 1 and 2.

of his right, if no other damages are fit and proper to remunerate him.

So long ago as the great case of Ashby v. White (2 Lord Raym. R. 938; s. c. 6 Mod. R. 45; Holt's R. 524), the objection was put forth by some of the judges, and was answered by Lord Holt, with his usual ability and clear learning; and his judgment was supported by the House of Lords, and that of his brethren overturned. . . .

The principles, laid down by Lord Holt, are so strongly commended, not only by authority, but by the common sense and common justice of mankind, that they seem absolutely, in a juridical view, incontrovertible. And they have been fully recognized in many other cases. . . . I am aware, that some of the old cases inculcate a different doctrine, and perhaps are not reconcilable with that of Lord Holt. There are also some modern cases, which at first view seem to the contrary. But they are distinguishable from that now in judgment; and, if they were not, "Ego assentior Scaevolae."

Upon the whole, without going farther into an examination of the authorities on this subject, my judgment is, that, whenever there is a clear violation of a right, it is not necessary in an action of this sort to show actual damage; that every violation imports damage; and if no other be proved, the plaintiff is entitled to a verdict for nominal damages. And, a fortiori, that this doctrine applies, whenever the act done is of such a nature, as that by its repetition or continuance it may become the foundation or evidence of an adverse right.1 . . .

Now, if this be the law on this subject, upon what ground can the defendants insist upon a diversion of the natural stream from the plaintiff's mills, as it has been of right accustomed to flow thereto ? First, it is said, that there is no perceptible damage done to the plaintiffs. That suggestion has been already in part answered. If it were true, it could not authorize a diversion, because it impairs the right of the plaintiffs to the full, natural flow of the stream; and may become the foundation of an adverse right in the defendants. In such a case, actual damage is not necessary to be established in proof. The law presumes it. The act imports damage to the right, if damage be necessary. Such a case is wholly distinguishable from a mere fugitive, temporary trespass, by diverting or withdrawing the water a short period, without damage, and without any pretence of right. In such a case the wrong, if there be no sensible damage and it be transient in its nature and character, as it does not touch the right, may possibly (for I give no opinion upon such a case), be without redress at law; and certainly it would found no ground for the interposition of a Court of Equity by way of injunction.

1 See also Mason v. Hill, 3 Barn. & Adolph. R. 304; s. c. 5 Barn. & Adolph. R. 1.

21. PAUL v. SLASON

SUPREME COURT OF VERMONT. 1850

22 Vt. 231

TRESPASS for taking two cords of wood, two baskets, two pitchforks, two horses, one harness, and one wagon. Plea, the general issue, with notice, that the defendant Charles H. Slason attached the property by virtue of a writ, which he was legally deputized to serve, in favor of one Langdon against the plaintiff, and that the other defendants aided him in so doing, at his request. Trial by jury, September Term, 1848, Hall, J., presiding. On trial it appeared, that on the twenty-sixth day of September, 1844, the defendant Francis Slason commenced a suit in the name of Benjamin F. Langdon against the plaintiff, and that the defendant Charles H. Slason, who was legally deputized to serve the writ, which was returnable to the County Court, attached the property in question, except one pitchfork, and that the defendant Pelkey assisted in removing the property. It also appeared, that on the same day Charles H. Slason and Pelkey made use of the horse, wagon, and harness, part of the property attached, in removing grain and other property, which was attached at the same time, on the same writ, and upon the same farm, and continued to use them for this purpose through the day; and that on the next day Charles H. Slason was seen driving the same horse and wagon, with the harness, in the highway in the vicinity, but upon what business did not appear. It also appeared, that the defendants took a pitchfork belonging to the plaintiff, and used it during the day on which the attachment was made, in removing the grain, &c. The defendants then offered in evidence the return of the sheriff upon the original writ in favor of Langdon against the plaintiff, showing an appraisal of the horse and some other property attached, and that the plaintiff has furnished security to the sheriff and received possession of the property. . . . The plaintiff requested the Court to charge the jury, . . . That if the jury found, that the defendants took the plaintiff's pitchfork and used it during the day, without right, he was entitled to recover its value, unless it were returned, — and that, if returned, he was entitled to recover nominal damages. . . . In regard to the pitchfork the Court charged the jury, that if they believed, from the evidence, that the defendants took and carried it away, they should give the plaintiff its value; that if it was used and left upon the premises, so that the defendant received it again, and it was injured by the use, the plaintiff would be entitled to recover the amount of the injury; but that if they found, that it was merely used for a portion of a day in removing the plaintiff's property, there attached, and was left where it was found, so that the plaintiff had it again, and that it was not injured by the use, they were not bound to give the plaintiff damages for

such use. The jury returned the verdict for the defendants. Excep tions by plaintiff.

POLAND, J. 1. The first question, arising in this case, is in relation to the charge of the County Court to the jury as to the use of the horse, wagon, and harness by the defendants, in removing the other property of the plaintiff, which was attached at the same time. . .

3. Another question is also raised upon the charge to the jury in relation to the use of the pitchfork by the defendants. Under the charge the jury must have found, that the pitchfork was used by the defendants only in moving the plaintiff's property, that it was left where they found it, that the plaintiff received it again, and that it was in no way or manner injured. They were told by the Court, that if they found all these facts proved, they were not obliged to give the plaintiff any damages for the fork.

It is true, that, by the theory of the law, whenever an invasion of a right is established, though no actual damage be shown, the law infers a damage to the owner of the property and gives nominal damages. This goes upon the ground, either that some damage is the probable result of the defendant's act, or that his act would have effect to injure the other's right, and would be evidence in future in favor of the wrongdoer. This last applies more particularly to unlawful entries upon real property, and to disturbance of incorporeal rights, when the unlawful act might have an effect upon the right of the party and be evidence in favor of the wrongdoer, if his right ever came in question. In these cases an action may be supported, though there be no actual damage done, because otherwise the party might lose his right. So, too, whenever any one wantonly invades another's rights for the purpose of injury, an action will lie, though no actual damage be done; the law presumes damage, on account of the unlawful intent. But it is believed, that no case can be found, where damages have been given for a trespass to personal property, when no unlawful intent, or disturbance of a right, or possession, is shown, and when not only all probable, but all possible, damage is expressly disproved.

The English Courts have recently gone far towards breaking up the whole system of giving verdicts when no actual injury has been done, unless there be some right in question, which it was important to the plaintiff to establish. . . . Mr. Broome, in his recent work on Legal Maxims, lays down the law in the following language:

"Farther, there are some injuries of so small and little consideration in the law, that no action will lie for them; for instance, in respect to the payment of tithes, the principle which may be extracted from the cases appears to be, that for small quantities of corn, involuntarily left in the process of raking, tithes shall not be payable, unless there be any particular fraud, or intention to deprive the person of his full right."

If any farther authority is deemed necessary, in support of the ruling of the County Court on this point, we have only to refer to that ancient

which

and well-established maxim, "de minimis non curat lex," seems peculiarly applicable in this case, and would alone have been ample authority upon this part of the case; for we fully agree with Mr. Sedgwick, that the law should hold out no inducement to useless or vindictive litigation. Sedgwick on Dam. 62. This disposes of all the questions raised upon the charge.1

1 [For the application of the present principle to specific kinds of tort, see as follows:

Trespass to the person, No. 26, post.

Trespass to real property, Nos. 261, 262, post.

Trespass to personal property, No. 290, post.

NOTES:

"Actual damage required." (C. L. R., VIII, 139.)

"Interference with rights, not causing actual damage." (H. L. R., IV, 293; IX, 435; XII, 284; XIII, 142.)

CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS PRINCIPLE: John W. Salmond, "Jurisprudence," 2d ed., § 130.

Henry T. Terry, Some Leading Principles of Anglo-American Law," c. XIII, § 406, p. 392, c. XV, § 526, p. 540.]