Blackstone again divides incorporeal hereditaments into two Chap. IV. classes, which for the most part consist of rights in alieno solo : 1. Profits à prendre, such as the right to take fish or feed cattle. 2. Easements, tending rather to the convenience than the profit of the claimant, such as a right of way (ƒ). land-defini A trespass to land is an entry upon, or any direct and Trespass to immediate act of interference with, the possession of land. In tion. order to maintain an action for this wrong, the plaintiff must have a present possessory title (g). Possession is presumptive proof of property, and is a good title against all the world except against a person who can show a better title (h). A good title to land may be given by the operation of the Statutes of Statutes of Limitation (i). By the Real Property Limitation Act, 1874, 37 & 38 Vict. c. 57, s. 1, it is enacted, that after the commencement of the said Act, (Jan. 1, 1879), no person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve (k) years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have jus accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same (1). Limitation. Title after twelve years possession. of possession. By the 3 & 4 Will. IV. c. 27, s. 3, it is enacted, that where the Accrual of the right on disperson claiming any land or rent, or some person through whom possession or he claims, has, in respect of the estate or interest claimed, been discontinuance in possession or receipt of the profits of the land, or in receipt of rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, then the right is to be deemed to have ju accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any profit or rent was so received. (f) See 1 Bl. Com. 647; Robins v. Barnes, Hob. 131; Peers v. Lucy, 4 Mod. R. 365. (g) Harrison v. Blackburn, 34 L. J. C. P. 109. (h) Brown v. Dawson, 12 A. & E.; Pugh v. Roberts, 3 M. & W. 458; Purnell v. Young, 3 M. & W. 288; Asher v. Whitlock, L. R. 1 Q. B. 1, 35 L. J. Q. (k) By the 3 & 4 Will. 4. c. 27, s. (1) Brassington v. Llewellyn, 27 L. J. Ex. 297. Chap. IV. Occupancy by servant. By the heir. By executor. By lessee. In consequence of these enactments, it no longer matters whether the possession is adverse or not. If another person has been in actual possession, whether adversely or not, the claimant is barred when the right of entry on which he relies first accrued above twelve years before bringing the action (n). The occupation by a servant, is an occupation by the master (o), and no title can be gained by the servant by such occupancy. Thus, the plaintiff was employed by a Company to collect toll for them and lived in the toll-house, one shilling being deducted from his wages by way of rent. The Company having ceased to collect toll at this particular place, he was dismissed from their employ, and received a notice to leave the house, which he promised but did not do. It was held, that these circumstances did not constitute him a tenant of the Company, and, therefore, that he could not maintain a trespass against their agent for pulling down the tollhouse (p). A coachman who occupies rooms over his master's stables, or a gamekeeper who occupies a cottage on his master's estate, has no legal interest in the premises, but only occupies them for his master's convenience. After entry by an heir-at-law, his right of possession relates back to the time his legal right to enter accrued, so as to enable him to support an action against a wrongdoer, committed at a time antecedent to the entry (q). Trespass, however, is not maintainable by a person (otherwise than the heir) who comes into possession after the commission of the trespass (r). An executor can maintain trespass for injury to a leasehold of his testator done during the testator's lifetime (s). Although an entry is not necessary for the purpose of vesting a term of years in the lessee, yet for the purpose of maintaining an action for trespass, the lessee must enter, since the action is founded on actual possession (t). Where the lessee is tenant of (n) See Addison on Torts, 5th ed. p. 236. (0) White v. Bailey, 30 L. J. C. P. 253 ; 10 C. B. 227; Bertie v. Beaumont, 16 East, 33. (p) Hunt v. Colson, 3 M. & S. 790; see also Browne v. Dawson, 12 A. & E. 624. Where a landowner, through motives of kindness, allowed a person to occupy a cottage and land, and at the same time had been in the habit of exercising acts of dominion over them, it was held that he had not parted with the possession : Turner v. Doe, 9 M. & W. 645. As to the mortgagor, under a tenancy which has been created since the Chap. IV. mortgage, and never recognized by the mortgagee, he cannot maintain an action for trespass against the mortgagee for entering and distraining on the land under the powers of the mortgage (u). life. Where the interest of A., a tenant, ceases before the expiration By tenant for of the term of letting, by the death of his landlord, the tenant for life, A., will not be presumed to have continued in possession after such death, and in the absence of any subsequent entry or other act done by him he has not a sufficient possession of the land either actual or constructive, to entitle him to maintain trespass (x). occupying for Where a person occupies lands or tenements for only a limited By person and temporary purpose, he yet may have a sufficient occupancy limited purpose. to maintain an action for trespass. Thus where contractors for making a canal erected a dam with the consent of the owner of the soil, for the purpose of completing their work, it was held that they might maintain an action against a wrong-doer for destroying the dam (y). common. Trespass will lie by one tenant in common against another for By tenant in an actual expulsion from the land held by them in common (2); so also for digging up and carrying away the soil (a), or for the entire occupation of a party wall by one tenant in common to the exclusion of the other (b). One tenant in common or joint tenant of land cannot maintain an action for trespass against another in respect of the exercise of any acts of ownership on the land by the latter, consistent with the rights of the former (c). Where two persons are tenants in common of a field, the merely putting by one of them, a lock upon the gate (not shown to be kept locked) will not constitute an ouster so as to enable the cotenant in common to maintain trespass. There must, for such a purpose, be other circumstances attending the act (d). Where an agent acting beyond the scope of his authority Trespass comcommits a trespass, the principal cannot be held liable (e). A mitted by agent (u) Gibbs v. Cruikshank, L. R. 8 C. P. 454; 42 L. J. C. P. 273. (x) Brown v. Notley, 3 Ex. 219; 18 L. J. Ex. 39. (y) Dyson v. Collick, 1 D. & R. 225; 5 B. & A. 600. () Murray v. Hall, 7 C. B. 441. 837. (b) Stedman v. Smith, 26 L. J. Q. B. 314; 8 El. & Bl. 1. (c) Martyn v. Knowllys, 8 T. R. 145; Cubitt v. Porter, 8 B. & C. 257. (d) Jacobs v. Seward, L. R. 5 H. L. 464; 41 L. J. C. P. 221. Swindon (e) Bolingbroke (Lord) v. or servant. F Chap. IV. master is not liable for the wilful trespass of his servant (ƒ); but where he orders his servant to do an act, the natural result of which is a trespass, and the servant uses ordinary care in the performance of the act, the master is liable, though he directs his servant not to trespass (g). What consti Every entry upon or direct interference with the possession of tutes a trespass. land or tenement in the occupation of another, is a trespass, unless the act can be justified. It is not necessary in order to maintain an action for trespass that there should be a personal entry; thus it is a trespass to drive a nail into (h), or place anything against another's wall (i), or to shoot across his land (k). An interference with the occupation is a constructive trespass, as where the plaintiff occupied apartments in the defendant's house, as tenant of the defendant, and the defendant locked the outer door and refused the plaintiff access to the apartments, it was held that this was evidence of a breaking and entering (1) of the apartments by the defendant (m). The owner of the soil may maintain an action of trespass against a person entitled to rights over the surface for acts not justified by the exercise of such rights (n). Thus the owner of land subject to a highway over it, may maintain an action for trespass against any person who deposits stones or rubbish upon the soil or in any way makes use of the land, save as a highway (o); so also in the case of land subject to the holding of a public market thereon; it must only be used for that limited purpose (p). Where A. was the freeholder of a close (q) on which the burgesses of a borough had a right during a portion of the year to depasture their cattle, and had during that period exclusive possession of the close, it was held, that A. might maintain an action against a person who during that period committed a trespass by digging holes in the subsoil, but not against anyone who during that period merely rode over the close (r). (f) Chandler v. Broughton, 1 C. & M. (g) Gregory v. Piper, 9 B. & C. 591. (k) Pickering v. Rudd, 1 Stark. 56; (1) Under the old form of pleading in trespass to land, the declaration always alleged that "the defendant broke and entered" certain lands of the plaintiff. See C. L. P. Act, 1852, 15 & 16 Vict. c. 76, Sched. B. (m) Lane v. Dixon, 3 C. B. 776. (n) Lonsdale (Earl of) v. Rigg, 26 L. J. Ex. 196; Every v. Smith, 26 L. J. Ex. 344. (0) Lade v. Shepherd, 2 Str. 1004. (p) Mayor of Northampton v. Ward, 1 Wils. 107. (a) The word "close" includes subsoil as well as soil. Cox v. Glue, 5 C. B. 533; 17 L. J. C. P. 162. (r) Cox v. Glue, supra. Exclusive possession sufficient to main tain trespass. Exclusive possession without property or interest in the soil, Chap. IV. is also sufficient to maintain an action for trespass. Thus one who has the pasture of a close may maintain an action for a trespass on his pasture (s). So where a person is entitled to the exclusive enjoyment of a crop growing on land during the proper period of its full growth, and until it be cut and carried away, he may in respect of such exclusive possession maintain trespass (†). If one man throws stones or rubbish or materials of any kind, or pours water on another man's land without his permission, he commits a trespass for which he is responsible, unless he can plead some legal justification (u). Throwing stones another man's or refuse on land, a trespass. Where a person places an incumbrance on another man's land, Continuing a right of action accrues from day to day until the incumbrance trespasses. is removed (x). If a man abuse an authority given him by law, he becomes a trespasser ab initio (y), as where an officer of the court neglects to remove goods attached, within a reasonable time, and continues on the premises in possession (z). Thus where the defendant, who was landlord to the plaintiff, from whom rent was due to him had, in order to make a distress, entered on the premises by forcibly breaking in a window, and seized and sold his goods, it was held that this mode of entry being unlawful in itself, rendered the defendant a trespasser ab initio (a). Abuse of license renders a person a trespasser ab initio. and detainer. At common law anyone who had a right of entry into lands, Forcible entry &c., might regain possession thereof by force; but this liberty being much abused, to the breach of the public peace, it was found necessary that it should be restrained by statute (b), it was therefore enacted by 5 Ric. 2, c. 7 (c), “that none henceforth make entry into any lands and tenements, but in cases where entry is given by the law, and in that case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner." When a person having the legal title to land is in |