would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required. But what are the rights of ownership? They are substantially the same as those incident to possession. Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject matter uninterfered with, and is more or less protected in excluding other people from such interference. The owner is allowed to exclude all, and is accountable to none; the possessor is allowed to exclude all but one, and is accountable to no one but him. The great body of questions which have made the subject of Property so large and important are questions of conveyancing. 255. HENRY SIDGWICK. Elements of Politics. (1891. Chap. V, 1, p. 63.) It is not, however, the mere right of unhampered use which constitutes the most essential element in the Right of Property, as commonly conceived: but the right of exclusive use. Whatever its rationale may be, it is this right of excluding all others permanently from any physical dealings with a particular portion of matter, which we have to regard as the most essential element in the Right of Property in material things. 256. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1765. Book III, c. X). [Printed ante, in No. 1, p. 5]. 257. ARTHUR G. SEDGWICK and FREDERICK S. WAIT. Treatise on the Trial of Title to Land. (1886. 2d. ed., §80. p. 42.) Classes of injuries affecting realty. Injuries affecting real property are chiefly of two classes. First. Those that divest the owner of the possession, and usurp his right of dominion over the property. Secondly. Those that injure the land or diminish its value or disturb or impair the owner's enjoyment of it, without divesting the possession. Trespass, waste, and nuisance are examples of the latter class. The former injury, which is attended with amotion from or deprivation of possession, is denominated an ouster, and has been defined to be "a wrongful dispossession or exclusion of a party from real property who is entitled to the possession." SUB-TOPIC A. INTRUSION OR IMPAIRMENT (TRESPASS. CASE) 258. REGISTRUM BREVIUM (1595). Breve de clauso fracto. (fol. 93b.) Rex, vicecomiti salutem. Quia A. fecit nos securos de clamore prosequendo, per R. de comitatu Lincoln & K. de comitatu Eborum: pone per vadium &c. quare vi & armis clausum ipsius A. apud N. fregit, & ducentos cuniculos suo, precii quadraginta solidorum ibidem inuentos cepit & asportuit &c. contra pacem nostram. Et tunc sic T. &c. Et indorsetur sic, per Ia & idem I, recepit plegios de prosequendo. Rex &c. Quare &c. bladam & herbam ipsius A. ad valentiam tanti apud N. nuper crescentia conculcauit & consumpsit. Vel sic: blada ipsius A., ad valentiam tanti apud N. nuper cresentia, cum quibusdam aueriis depastus fuit, conculcauit & consumpsit, & alia enormia &c. 259. ANON. The Attorney's Practice in the Court of Common Pleas. (1746, 2d ed., vol. I, p. 120). Declaration in trespass for breaking the plaintiff's close: Southampton. T. W. late of Christ-Church in the county of Southampton, Gentleman, was attached to answer J. P. of a plea, wherefore with force and arms he broke the close of the said J. P. at L. in the county aforesaid, and his grass and herbs to the value of 201. there lately growing, with certain cattle grazed, trampled on and consumed, and did him other injuries, to the great damage of the said J. P. and against the peace of our Lord the present king; and whereupon the said J. P. by J. G. his attorney complains, that the said T. W. on the first day of June in the eleventh year of his present majesty's reign, with force and arms, etc. broke the close of the said J. P. at L. in the county aforesaid, and the grass, corn, barley, beans, pease, turnips, carrots, and cabbages, to the value of 10l. there then lately growing, with certain cattle, to wit, with horses, oxen, cows, hogs, and sheep, grazed, trampled on and consumed, and other injuries, etc. to the great damage, etc. and against the peace, etc. and whereupon he says that he is injured, and hath damage to the value of twenty pounds; And thereupon he brings suit, etc. OPINION of the Court, by Chief Justice BIBB. The plaintiff declared against defendant, that, on a day, year, and place stated, he, “with force and arms, upon the dwelling-house of the said plaintiff, did make an assault," "and then and there, with clubs, stones, and other implements, did violently stone, shatter, and break down the door of the said plaintiff's house aforesaid, and other violences and enormities," etc. The defendant demurred, and pleaded, also, not guilty. The Court overruled the demurrer, and the jury found the issue for the plaintiff, and assessed the damage; from the judgment rendered thereon the defendant appealed. Two objections are taken in this Court. First. That the declaration does not alledge the fact to have been against the peace and dignity of the Commonwealth. Second. That the plaintiff has not declared for a trespass quare clausum fregit, nor alledged that the defendant broke and entered the close. The first objection goes to form only, which can not be regarded under the statute of 1811. As to the second, it cannot be pretended that stoning the plaintiff's dwelling-house, and with force and arms, with clubs and stones, shattering and breaking down the door, is not actionable, If breaking the door of a dwelling-house, by throwing stones and wielding clubs from the street, or from an adjoining close, is not a breach of the close of the owner of the dwelling, then the plaintiff was right in omitting to charge it as a breaking and entering into the close. If it does amount to a breaking of the close of the plaintiff, then the declaration, having plainly and substantially set forth the force, assault, and breaking of the door, has done enough. It was unnecessary, after stating the facts which constitute a trespass quare clausum fregit, to call the trespass by its name. A bear, well painted, and drawn to the life, is yet the picture of a bear, although the painter may omit to write over it, "This is the bear." The declaration alledges that the defendant, with force and arms, did "stone, shatter, and break down the door" of her dwelling-house. Is not this a trespass quare clausum fregit? The dwelling-house is one's close, his fortress, his sanctuary. This, the declaration alledges, was assaulted and broken with force and arms. How can a trespass quare clausum fregit be more plainly, more explicitly, and more substantially complained of and averred? It cannot be pretended that one who stands in a street, or in an adjoining close, and, by throwing stones and wielding clubs from thence, breaks and shatters the door of the domicil of another, is not guilty of a trespass. He is guilty of breaking the close, and it may be complained of quare clausum fregit. It is a breach of the close as effectually as if the like violence were done to a house in the country, after the wrong-doer had broken the outer close, entered a curtilage, and stoned the mansion-house. A personal bodily entry upon the land is not necessary to constitute a trespass quare clausum fregit. One who stands upon his own land, and with force and arms, by throwing stones and clubs, breaks his neighbor's house, is guilty of trespass quare clausum fregit. We do not think there is any cabalistic charm in the words "quare clausum fregit," or "broke and entered the close," which may not be supplied by the averment of the facts which constitute a breach of the close, and the damage arising from such breach. . . . The judgment is affirmed, with costs. 261. PFEIFFER v. GROSSMAN SUPREME COURT OF ILLINOIS. 1853 15 Ill. 53 THIS cause was tried before UNDERWOOD, Judge, at the March term, 1853, of the St. Clair Circuit Court. G. Koerner, for plaintiff in error. TREAT, C. J. This was an action of trespass quare clausum fregit, brought in 1853, by Pfeiffer against Grossman. The plea was not guilty. It appeared in evidence that the plaintiff had title to a certain tract of land; that according to a survey made in 1854 a fence claimed by the defendant was on this tract. The fence inclosed about half an acre of the tract, part of which was in timber and the rest in cultivation. The fence was built by McGuire, who was in possession previous to the defendant. Prior to the survey there was some difficulty between the plaintiff and the defendant as to the boundary line, the latter claim ing to the fence. The defendant was dissatisfied with the survey, and continued in possession of the ground up to the feace, although notified by the plaintiff to remove the fence. After the suit was brought the defendant caused another survey to be made, which agreed with that made in 1851. It was stated by the plaintiff's counsel that the suit was brought for the purpose of establishing the boundary line between the parties. The Court refused to give these instructions: "That the putting a fence or letting it stay on the land of another is a trespass in the eye of the law, for which the aggrieved person is entitled to at least nominal damages; that the ploughing up of another man's land and cultivating it, although the land may thereby be improved, is trespass in law, for which the person aggrieved is entitled to at least still a nominal damages." The jury found the issue for the defendant, and the Court rendered judgment on the verdict. The instructions not only asserted correct legal principles, but they were strictly applicable to the case. If a party puts a fence on another's land or ploughs up the soil, he is liable as a trespasser. Such acts are a violation of the owner's right of possession, to redress which the law gives him an action. And the action is maintainable, although the owner is not substantially injured. He is entitled to nominal damages for the intrusion upon his possession. The defendant cannot defeat the action by showing that the plaintiff is not materially prejudiced, or even that he is actually benefited. A right is invaded and a wrong committed, and that is a sufficient basis for an action. Every unauthorized entry on the land of another is a trespass, for which an action will lie. The law implies damage to the owner, and in the absence of proof as to the extent of the injury, he is entitled to recover nominal damages. Especially is this the case where the suit is brought for the purpose of settling a question or right. Dixon v. Clow, 24 Wend. 188; Pastorius v. Fisher, 1 Rawle, 27; Bagby v. Harris, 9 Ala. 173; Plumleigh v. Dawson, 1 Gil. 544; Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241; Whipple v. The Cumberland Manuf. Co. 2 Story's R. 561. The judgment is reversed and the cause remanded. Judgment reversed. 262. WILSON v. PHOENIX POWDER MANUFACTURING CO. SUPREME COURT OF APPEALS OF WEST VIRGINIA. 1895 40 W. Va. 413, 21 S. E. 1035 BRANNON, Judge. The Phoenix Powder Manufacturing Company was sued in an action of trespass on the case in the Circuit Court of Wayne County by John G. Wilson, to recover damages to Wilson's dwelling house and other buildings resulting from an explosion of powder stored in buildings of the defendant company. The jury found a verdict for the plaintiff, subject to the defendant's demurrer to the plaintiff's evidence, on which demurrer the Court gave judgment for the plaintiff, and the defendant resorted to the writ of error which we now decide. I suppose the injury to the plaintiff's property was so direct and immediate from the explosion as to warrant an action of trespass under the strict principles of the common law. But that is irrelevant, as, the action here being trespass on the case, we need not consider the nice and finespun distinction as to direct and consequential injury, on which rested the choice between the two forms of action, resulting formerly in so many nonsuits, discussed in Jordan v. Wyatt, 4 Gratt. 151 and elsewhere, as the enactment found in section 8, chapter 103, Code, that "in any case in which an action of trespass will lie there may be maintained an action of trespass on the case," does away with it in this case. We cannot set aside the verdict for excessiveness of damages. Therefore we affirm the judgment. 264. REGISTRUM BREVIUM. (1595, fol. 106b.) Writ in case for damage to realty. [Printed ante, as No 7.] 265. W. S. An Exact Collection of Choice Declarations etc. translated into English for the benefit and helpe of young Clerkes. (1653. Part 3, p. 74.) Declaration in Trespass upon the Case for making of a banke by which the plaintiff's land was drowned: A. B. complains of I. P. the elder, and I. P. the younger in the custody of the Marshall, etc. of a plea wherefore whereas a certain course of water called C. ought to run in a certaine stream at C. in the County aforesaid for the serving of the Lands and Tenements, near the Water-course aforesaid, the aforesaid I. and I. not ignorant of the premises, plotting the aforesaid A. to worse and hurt in his Lands and Tenements goods, and chattels, a certaine banke on crosse the Water-course aforesaid at C. aforesaid they made, by reason of which the water aforesaid was hindered of his course aforesaid; By which six hundred acres of Pasture of his the said A. neer adjoyning to the Water-course aforesaid was so extraordinarily drowned, that the same A. the profit of that his pasture for a great time he lost; Whereby he sayes he is worsted and hath damage, etc. 266. YEAR Book, 12 Edward III (1338) (Rolls ed. p. 468). Assisa de Nocumento. J. was attached to answer W. in a plea wherefore upon his wall at E. near a certain house of the said W. there he placed stones of such a width that the rain falling on those stones comes down on the said house so that the walls and timber of the said house have become decayed and rotten and the said house is going to ruin, to the damage of the said W. And J. denies etc., and comes etc. 267. SIR EDWARD COKE, Commentary upon Littleton. (1628, Second Institute, 56b.) If a man hath a house near to my house, and he suffereth his house to be so ruinous as it is like to fall upon my house, I may have a writ De Domo Reparanda, and compel him to repair his house. |