TITLE C: PROPRIETARY HARMS SUB-TITLE (I): REALTY Topic 1. Kinds of Interests protected by the Right 234. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1765. Book II, p. 18.) In treating or things real, let us consider, first, their several sorts of kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it. First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. . . . Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke,' comprehendeth, in its legal signification, any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, said he, of two things; land, which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water.2 For water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immovable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other. Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, eius est usque ad coelum, is the maxim of the law; upwards, therefore, no man may erect any building, or the like, to overhang another's land: and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but everything under it, or over it.1 1 1 Inst. 4. 2 Brownl. 142. [W. M. JAMES, V. C., in Corbett v. Hill (1870, L. R. 9 Eq. 671, 673). The ordinary rule of law is that whoever has got the solum - whoever has got the site is the owner of everything up to the sky and down to the centre of the earth.] 4 -- [CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Herbert Spencer, "Justice," c. XI, §§ 52, 53, The Rights to the Uses of Natural Media, c. XII, The Right of Property. SUB-TOPIC A. STATIONARY ELEMENTS (1) Superjacent Space 235. PICKERING v. RUDD KING'S BENCH. 1815 4 Camp. 219. 1 Stark. 581 TRESPASS for breaking and entering the plaintiff's close, and placing a board over it, and cutting a tree, &c. Plea, not guilty as to the clausum fregit; and as to cutting the tree, a justification that it was wrongfully growing against the wall of the defendant, and that he therefore removed it, as he lawfully might. New assignment of excess, and issue thereupon. The defendant's house adjoins to the plaintiff's garden, the locus in quo; and to prove the breaking and entering of this, the evidence was, that the defendant had nailed upon his house a board, which projected several inches from the wall, and so far overhung the garden. Garrow, A. G., and Richardson, for the plaintiff, contended that this was a trespass for which he had a right to maintain the present action. Cujus est solum, ejus est usque ad coelum. The space over the soil of the garden is the plaintiff's, like the minerals below, and an invasion of either is, in contemplation of law, a breaking of his close. A mere temporary projection of a body through the air across the garden may not be actionable; but where a board is caused permanently to overhang the garden, this is a clear invasion of the plaintiff's possession. If this be not a trespass, it is easy to conceive that the whole garden may be overshadowed and excluded from the sun and air without a trespass being committed. Lord ELLENBOROUGH, C. J. I do not think it is a trespass to interfere with the column of air superincumbent on the close. I once had occasion to rule upon the circuit, that a man who, from the outside of a field, discharged a gun into it, so as that the shot must have struck the Sheldon Amos, "Science of Law," c. VIII, Laws of Ownership or Property. Henry Sidgwick, "Elements of Politics," c. IV, § 2, chap. V. Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XI, § 345, p. 340. Jeremy Bentham, "Theory of Legislation: Principles of the Civil Code," pt. I, c. VIII. William Paley, "Principles of Moral and Political Philosophy," b. III, pt. I, c. II (16th ed., vol. I, p. 121). Theodore D. Woolsey, "Political Science," § 22–32. Sheldon Amos, "Systematic View of the Science of Jurisprudence," c. X, par. A, p. 125. Francis Lieber, "Manual of Political Ethics," b. II, c. II, § 7 (Misc. Writings, vol. I, p. 108). Charles S. M. Phillipps, "Jurisprudence," b. I, c. II, § 58, p. 113, § 86, p. 128. John W. Salmond, “Jurisprudence,” 2d ed., §§ 86, 152.] soil, was guilty of breaking and entering it. A very learned judge who went the circuit with me, at first doubted the decision, but I believe he afterwards approved of it, and that it met with the general concurrence of those to whom it was mentioned. But I am by no means prepared to say, that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit. Nay, if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare clausum fregit, at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case. Here the verdict depends upon the new assignment of excess in cutting down the tree. The jury found for the defendant. 236. KENYON v. HART QUEEN'S BENCH. 6 B. & S. 249 1865 CASE stated under Stat. 20 & 21 Vict. c. 43. At a Petty Sessions of the Peace, holden at Ashford, in the county of Kent, an information was exhibited by the appellant against the respondent for having, on the 1st October, 1864, unlawfully committed a trespass by being in 'the daytime upon certain land in the possession and occupation of Henry Tappenden, in search of game, without the license or consent of the owner of the land or of any other person having the right to authorize him, &c., contrary to the statute. On the hearing of the case the appellant on his oath stated, "I am under-keeper to Sir Richard Tufton, Bart.; on the 1st October last, about half-past ten in the morning, the respondent was out shooting. He shot a cock pheasant and it fell on Mr. Tappenden's field belonging to Sir Richard Tufton; he went and fetched the bird himself, taking his dog and gun with him; the respondent was on his own land when he shot the pheasant, and it rose off his land. The pheasant was dead when the respondent picked it up, and it lay upon its back." When the respondent's solicitor was addressing the Court, the chairman recalled the appellant and asked him whether, when the respondent shot the pheasant, it was or was not in the air over the land belonging to Sir Richard Tufton. The appellant replied that it was, and fell a considerable distance within his boundary. The respondent's solicitor objected to the question being put after the appellant had heard the opening of the respondent's case, and contended: First, That no trespass within the meaning of Stat. 1 & 2 W. 4. c. 32, s. 30, had been committed, as the pheasant rose off the respondent's land and the respondent was upon his own land when he shot the bird. Second, That the 30th section of the Act did not apply to game when dead. Having heard the evidence of the appellant, and the argument of the respondent's attorney, the justices dismissed the case on the grounds that, as the pheasant was raised off the respondent's land and shot by him while he was upon his own land, the mere act of entering the land for the purpose of picking up the pheasant, which was then dead, was not such a trespass ir pursuit of game as is contemplated by Stat. 1 & 2 W. 4, c. 32, s. 30. The question for the opinion of the Court was whether they were right in point of law. . . . The satute reads, "And whereas, . . . if any person whatsoever shall commit any trespass by entering or being, in the daytime, upon any land in search or pursuit of game, &c., such person shall, on conviction thereof," etc. . . . Keane, for appellant. The respondent committed a trespass by entering upon land in search of game within Stat. 1 & 2 W. 4, c. 32, s. 30. . . . In Reg. v. Pratt, 4 E. & B. 860 (E. C. L. R. vol. 82), it was held that a conviction under Sect. 30 was supported by evidence of the defendant having, while standing on a public road, sent a dog into an adjoining cover in the occupation of B., and shot at a pheasant which flew across the road without killing it. [BLACKBURN, J. Yes, but the ratio decidendi was that the road on which the respondent stood when he fired was also the soil and freehold of B. That case raises the old query of Lord Ellenborough as to a man passing over the land of another in a balloon: he doubted whether an action of trespass would lie for it. I understand the good sense of that doubt, though not the legal reason of it. Here the justices do not find whether the pheasant was shot over the land where it was picked up.] In Osbond, appt., Meadows, respt., 12 C. B. N. S. 10 (E. C. L. R. vol. 104), where the respondent, being on land over which he had the right of shooting, shot a pheasant which was on the ground in an adjoining close over which another person had the exclusive right of shooting, and went into that close and picked it up, it was held a trespass in search or pursuit of game. [BLACKBURN, J. In that case the Court held that taking the whole of the transaction together, the respondent was within sect. 30; the shooting the bird and going upon the close to pick it up being one transaction; but I am not satisfied with that reasoning.]. Keane, in reply. The justices had no right to direct their attention solely to the fact of the respondent's entry on the land, and to dismiss from their consideration the circumstances that the bird was game, that it was killed by a shot from the respondent, and that the shot was fired over the land of another person. . . . BLACKBURN, J. The justices were right on the point which they have stated for our consideration, and also in confining in the manner they have done the question put to us. Looking at the object and spirit of this section we shall see that it was to prevent persons entering land in search or pursuit of game in the sense of living game. . . . With respect to the second question. No doubt the respondent entered this field without lawful authority, and therefore was a trespasser. It is equally certain that he did so in order to pick up a dead pheasant lying there, of which he was in search, but at the time of his entry upon the land the bird was dead. It is endeavoured to show that he is guilty under this section from previous facts, viz., that being shooting in his own ground the bird rose and flew over the boundary, that he fired and struck the bird when over his neighbour's land. . . . It has been held in Reg. v. Pratt, 4 E. & B. 860 (E. C. L. R. vol. 82), that if, as here, a person standing on his own land sends a leaden messenger at game on the land of another person, this is not a trespass in pursuit of game. Then, however, it is said the respondent entered the land of the other person to pick it up, and the case, consequently, comes within the decision in Osbond, appt., Meadows, respt., 12 C. B. n. s. 10 (E. C. L. R. vol. 104). . . . The facts are different from the present. There a man shot a bird in his neighbour's close and then went to fetch it; and as the justices had some doubt, and the statute was a penal one, they did not convict. The Court say, at I read the decision, that if the justices thought the shooting the bird and the picking it up were all one and the same act, that it was the pursuit of the game continued till consummated by picking up the bird, they might have so inferred. ... But the question is, were the justices here right in not drawing the inference? Without saying if they had drawn the opposite inference they would have been wrong, it is enough that the question they ask us is, not about the pheasant having been hit while it was in the air over the neighbour's land, but whether the entering the land to pick up the dead pheasant was a trespass within this statute. It was a trespass, but not in pursuit of game, and we cannot, as in Osbond, appt., Meadows, respt., infer that it was all one act. MELLOR, J., concurred. Decision affirmed. 237. SMITH v. SMITH SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1872 110 Mass. 302 TORT. The declaration alleged that the defendant forcibly entered the plaintiff's close and broke down a fence, and also built a part of a barn upon the close, and thereby expelled and put out the plaintiff from possession and occupation of a part of the close, and kept and continued him so kept out and expelled from said part of the close. Trial in the Superior Court, before Bacon, J., who, after a verdict for the defendant, allowed the following bill of exceptions: |