TRESPASSES UPON PROPERTY.

CUTTS v. SPRING, leading case.
MURRAY V. HALL, leading case.

Note on Trespasses upon Property.
Historical aspects of the subject.
Possession and property.

Possession as to wrong-doers.

Injuries to reversion.
Constructive possession.

Cotenants.

Mesne profits. Entry.

Injuries to personalty.

WILLIAMS v. ESLING, leading case.

ANTHONY V. HANEY, leading case.

MALCOM V. SPOOR, leading case.

Note on what constitutes a Trespass.

THOMAS CUTTS and Others v. THOMAS SPRING and Others.

(15 Mass. 135. Supreme Court, Massachusetts, May Term, 1818.)

Possession under Invalid Title. A grantee of land from the Commonwealth takes possession of more land than he is entitled to hold under his grant. A trespass is committed on a part of the premises afterwards resumed by the Commonwealth. Held, that the grantee was entitled to his action for the trespass, he being answerable to the Commonwealth in a suit for the mesne profits, or in some other way.

TRESPASS quare clausum fregit, and for cutting timber on a tract of land in Hiram, in the county of Oxford. On the general issue joined, trial was had at the last October term, before Thatcher, J. The plaintiffs proved the cutting of the trees on the land described, their title to which they derived as follows: In 1771 the government of this then province granted to one Benjamin Prescott a certain tract of land, which he caused to be surveyed, and upon which he entered. In 1809, his son, Henry P., conveyed the south-easterly half thereof to the plaintiffs, who entered, and became seized and possessed thereof, including the locus in quo.

The defendants offered to prove that, since the trespass was committed, the Commonwealth had recovered judgment upon an

inquest of office against the plaintiffs, upon the ground that they, as assignees of said Benjamin, held and claimed more lands than they were entitled to hold under the said grant; and that commissioners, appointed pursuant to law, had assigned to the plaintiffs a tract of land, being part of what they claimed to hold, but not including the locus in quo. The judge refused to admit this evidence; and a verdict was returned for the plaintiffs, which was to be set aside and a new trial had, if the said evidence ought to have been admitted.

Mellen and Adams, for the defendants, argued that the plaintiffs, although in possession at the time of the trespass, were to be considered merely as tenants at will to the Commonwealth; and that the Commonwealth being the party injured, the plaintiffs could claim at most but nominal damages. 11 Mass. Rep. 519, Starr & al. v. Jackson. In the case referred to, the court say: "A disseizee may maintain trespass for injurious acts subsequent to the disseizin, and while he was out of possession, after he has re-entered." But the case at bar is still stronger; for the Commonwealth cannot be disseized, and is still entitled to its action against the defendants for this trespass done to its land while in the wrongful possession of the plaintiffs. Longfellow, for the plaintiffs. The defendants are mere strangers to the title in this land. The plaintiffs were not tenants at will. They were seized in fee against all the world, except the Commonwealth. They, and those under whom they claimed, had been in the undisputed possession of the land for more than thirty years, which gave them the right of possession, which nothing short of an inquest of office could lawfully disturb. The Commonwealth could not have trespassed for this injury, while the plaintiffs were thus possessed of the land: 1 East's Rep. 244, Graham v. Peat; for possession is necessary to support such action. The case of Starr & al. v. Jackson shows only that a tenant of the freehold can maintain trespass, although there be a tenant at will. It is not known to have been decided here that the Commonwealth cannot be disseized. The plaintiffs, however, always considered themselves as holding adversely to the Commonwealth, and not as tenants at will to it.

BY THE COURT. The grant of the government to B. Prescott in 1771, and his surveying, fixing the bounds, and entering upon the land, gave him a seizin, although he included more land.

within his location than his grant conveyed to him. His title descended, with the possession, to his son, and the deed of this latter conveyed the seizin to the plaintiffs in 1809.

It is wholly immaterial to the defendants whether the location covered more land than the terms of the grant would warrant. The plaintiffs were seized as well as possessed, in regard to every one but the Commonwealth, who might, or might not, reclaim part of the land located, as not conveyed.

The action, therefore, is rightly brought, and the value of the trees is the proper measure of the damages. For the Commonwealth has a right to call the plaintiffs to account, by a suit for the mesne profits, or in some other way; and as the defendants were wrong-doers to the plaintiffs, these latter ought to be in possession of the value of the trees, as a fund to meet the claim. of the Commonwealth. If not called upon, they have a right to keep the money for their own use, being accountable to none but the Commonwealth. Judgment on the verdict.

MURRAY v. HALL.

(7 C. B. 441. Common Pleas, England, Hilary Vacation, 1849.)

Cotenants. Trespass quare clausum fregit lies by one of several tenants in common against his cotenant, where there has been an actual expulsion.

THIS was an action of trespass for breaking and entering the dwelling-house of the plaintiffs, and expelling them therefrom, and seizing and converting their goods.

The defendant pleaded, first, not guilty; secondly, as to the breaking and entering the dwelling-house, leave and license; thirdly, that the premises were not the premises of the plaintiffs; fourthly, as to the goods, leave and license; fifthly, that the goods were not the goods of the plaintiffs: upon which issue was joined.

The cause was tried before Maule, J., at the sittings at Westminster, in Easter Term, 1847. The facts that appeared in evidence were as follows: The three plaintiffs and one Hart had jointly become tenants of the premises in question — a room

used as a coffee-room by the members of a temperance society — to one Hall. On the 23d of November, 1846, the defendant and Hart forcibly expelled from the premises a person named Adams, who had been placed there by Murray.

On the part of the defendant it was proved that Hart, on the 5th of November, 1846, surrendered his interest to the defendant by a document of which the following is a copy:

"Mr. W. HALL.

"SIR,The premises I and my copartners hold of you, being situated No. 11 Stacey Street, St. Giles's, I, in the name of the same, give up, as we cannot pay you the rent due, my copartners having misapplied the same. Yours, &c.,

"JOHN HART.

"P.S.I have given the key to Mr. G. for you."

It was then insisted for the defendant that the surrender by Hart at all events inured as a surrender of his own interest, and made Hall tenant in common with the three plaintiffs; and that one tenant in common could not maintain trespass against his companion, even for an actual expulsion. Cubitt v. Porter 8 B. & C. 257; 2 Mann. & R. 627. And see Wiltshire v. Sidford, 1 Mann. & R. 403. On the part of the plaintiffs it was objected that, since the new rules, a surrender must be pleaded specially. The learned judge told the jury that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the premises by the defendant, their verdict ought to be for the plaintiffs. The jury returned a verdict for the plaintiffs; damages 351.

Wallinger, in the course of the same term, obtained a rule nisi to enter a nonsuit, pursuant to leave reserved.

Parry showed cause.

Channell, Serjt., and Wallinger, in support of the rule.
COLTMAN, J., now delivered the judgment of the court.

This was an action for breaking and entering the plaintiffs' dwelling-house, and expelling them therefrom, to which the defendant pleaded, first, not guilty; secondly, leave and license; thirdly, a denial that the dwelling-house was the plaintiffs'.

At the trial before Maule, J., one ground of defence was that the defendant was tenant in common of the house with the plain