CHAP. IV. or a bill to quiet the owner in possession, after repeated trials at law, may become a prudent proceeding to prevent future II. & III. INJUlitigation. (h) RIES TO REAL ejectment in The ordinary proceeding for recovery of the possession of 11. Remedy premises, where the right of possession has accrued within by action of twenty years, (after which it is necessary in general to proceed general. in a Real action,) is by ejectment, which is a mixed action, as well for recovery of possession as for damages, and though until recently the latter were merely nominal, and the defendant could not be compelled to give security in the nature of bail, yet the recent acts, (1 Geo. 4, c. 87, and 1 Wm. 4, c. 70, s. 36 to 38, and 1 Wm. 4, sess. 1. c. 7,) in cases between landlord and tenant, restore the action to the ancient principle, and entitle the lessor of the plaintiff not only to recover possession, but also actual damages, in the nature of mesne or intermediate profits, whilst the party has wrongfully withheld possession, and so as to prevent the necessity for a subsequent distinct action of trespass to recover such mesne profits. But these statutes are confined to proceedings by landlords against tenants holding over, and do not extend to other claimants. The whole practice in ejectment will be considered in the second volume, (i) and we shall merely here observe that an action of ejectment can only be sustained when the property to be recovered is real property, and actually part thereof, and not for a thing moveable, or for or against a person in respect of a stall set up in a street, and not substantially and permanently let into the ground, (k) nor for a mere transient trespass, where there is no continued ouster or exclusion from house or land, an action of trespass quare clausum fregit being then the proper remedy for such mere trespass. (1) So ejectment is not sustainable for Dower before it has been assigned, as the widow has not before that division any distinct legal interest in any part of the land. (m) Nor can ejectment be sustained for Incorporeal property, which not being tangible is incapable of being injured by an ouster, and the proper remedy is case for the injury. But ejectment for Tithes is an exception introduced by statute; (n) and ejectment, we have seen, lies for a right of (h) Post, ch. viii. (i) And see Adams on Ejectment, 3 ed., one of the very best modern works, replete with learning and equally perspicuous and practically useful. (k) Doe v. Cowley, 1 Car. & P. 123, and ante, 148, note (r), 374, 375. (1) Id. ibid.; 7 T. R. 327; 1 Bos. & Pul. 573, ante, 374, 375. (m) 2 Car. & P. 430. (n) 32 Hen. 8, c. 7, s. 7; Cro. Car. 301; ante, 218. CHAP. IV. PROPERTY. common appendant or appurtenant, when claimed together RUS TO REAL With real property. (o) With respect to the Title, it should seem that the modern practice narrows the maxim, that the lessor of the plaintiff must recover upon the strength of his own title, and not on the weakness of that of his adversary, for (at least primâ facie) mere proof of priority of possession will suffice against a party who acquired possession from or under the lessor of the plaintiff by consent or force or fraud. (p) 12. Remedy for Dower. SECONDLY. TRESPASSES and remedies. What a trespass. A widow has not, until a distinct third has been assigned to her by consent, or under process of law, any legal interest `in any part of the land, and (subject to her right to retain possession of the principal mansion for forty days after her husband's death,) she would have no defence to an action of ejectment on the demise of the heir. She should threfore require the heir to assign her a just proportion of the estate descended, and if he should afterwards refuse, a Court of Equity would probably compel him to pay costs. If the husband died seised, then, upon a writ of dower, she would at law be entitled to damages and costs; but if he did not die seised, then she could not at law recover either, and therefore in that case it is better, after demand, to proceed in a Court of Equity. (q) SECONDLY, are injuries by trespasses upon land or in the house of a party in actual possession and without eviction. The act complained of must have been upon or at least in contact with the land or building, or it cannot be deemed a trespass, but merely a nuisance, remediable in an action on the case, (r) and must have been an act committed by, or caused to have been committed by the defendant; and therefore although the owner of cattle, whose habit of wandering must be known, or presumed to have been known to him, is liable to be sued for trespasses committed by them, although without his actual concurrence, it would be otherwise as respects other animals, as a dog; (s) but a very small contact, such as earth being piled up near to and rolling against a wall, though upon the land of the wrong-doer. (t) It must be some act done, so that it might be technically described as committed with force, and therefore a mere nonfeazance, such as the neglect to remove (o) 1 Stra. 54; ante, 211, note (c). (p) Ante, 274, 275. (9) 2 Saund. R. 43, in notes; Mit. Eq. Treat. 111; Bac. Ab. Dower; Chit. Eq. Dig. 324 to 328; and 3 Chit. Pl. 5 ed. 1311 to 1330. (r) 2 Burr. 1114; 11 Mod. 74, 150; 1 Stark. R. 59. (s) 1 Car. & P. 119; Burr. Rep. 2092 ; 2 Lev. 172; 1 Chit. Pl. 5 ed. 94, 95. (t) 9 B. & Cres. 591. tithe duly severed is not a trespass; (u) and it should seem questionable whether the mere continuance of an injury, for the inception of which the plaintiff has already recovered damages, can be treated as a trespass, as the neglect to remove an incumbrance on land after a verdict for placing the same thereon. (x) The injury must also be to the possession, and a person who has not had actual possession, but merely the right, cannot, before he has taken possession, sue, though afterwards he might for an antecedent injury, after his right first accrued. (y) But we have seen that mere possession, and that even under a void lease, is sufficient against a wrong-doer or person who cannot prove the right of possession in himself, or in some person by whose authority he committed the act complained of. (2) CHAP. 1V. II. & III. INJU RIES TO REAL &c. 1. The remedies for trespasses are by prevention, compensa- 1. Remedies tion, or punishment. The prevention, by turning off the tres- by preventions, passer or his cattle, not using unnecessary force or dangerous weapon, (a) but not by placing dangerous instruments on the land, as spring guns, (b) or dog spears, (c) or a ferocious dog or other animal in an open yard, at least without adequate notice. (d) So the continuance of a trespass by cattle may be 2. Remedy by prevented, and the payment of damages for the injury then distress. doing may be secured by distraining the cattle whilst in the act of doing the damage, and upon the same close, but not after they have escaped. (e) So in case of wasteful continued 3. Remedy by trespasses, it may be expedient to file a bill, and by injunction proceeding in prevent a repetition. (ƒ) equity. summary proceeding before 4. And compensation to the extent of 51. for small wilful or 4. Remedy by malicious trespasses, occasioning actual damage, and not mere trespasses by walking over land, may be obtained by summary a justice. proceeding before a justice. (g) 5. To prevent trespasses in pursuit of game, summary pro- 5. Remedies ceedings are provided either to apprehend and detain for even (d) Sorel v. Blackburn, 4 Car. & P. 297; M'Kone v. Wood, 5 Car. & P. 1; 3 B. & Ald. 312, 313; see fully chap. vii. (e) 4 Bing. 642, 643; post, chap. vii. (f) Ex parte Clegg, post, chap. viii.; 17 Ves. 110; 1 Swans. 208; 5 Mad. 45; Chit. Eq. Dig. 1058. (g) 7 & 8 Geo. 4, c. 30, s. 24; Buller v. Turley, 2 Car. & P. 585; Devey v. White, 1 Mood. & M. 56; Rex v. Harper, 1 Dowl. & R. 223; post, Criminal Injuries. for trespasses as to game. CHAP. IV. IL & III. INJU PROPERTY. 6. Remedy by action of tres pass. 7. Remedies &c. twelve hours, a trespasser who refuses truly to tell his name and place of abode, and to take him before a justice; and such justice may convict in penalties for trespassing, taking game, attempting to poison it, and other injuries. (h) 6. But the common law action of trespass is the usual remedy for trespasses and other immediate injuries on land or buildings, but restrained by statutes, enacting that the plaintiff, whenever he recovers a verdict for less than 40s. shall have no more costs than the damages, unless the judge certify that the trespass was wilful, or that the freehold came in question; and hence the expediency of not proceeding for any trespass, unless it were committed after notice not to commit it, or unless the damages were so considerable as to render it certain that the verdict will be for 40s. or upwards. (i) 7. We have seen that mere omissions are not trespasses, nor for nonfeazance, remediable by action of trespass. Such as the neglect to remove tithe, (j) or to remove an incumbrance after recovery of damages for the original trespass; and in these cases the remedies are by carefully removing the incumbrance to a proper place off the land, or after requesting the wrong-doer to remove the nuisance, by proceeding in an action against him for his neglecting to do so; and it would not be legal to turn cattle upon the land, or otherwise to damage the tithe,(k) and care must be observed in the removal of the property incumbering the soil. (7) The incumbrance might however be distrained damage feasant. (7) THIRDLY. Injuries by not REPAIRING FENCES. THIRDLY. DEFECT OF FENCES. We have considered in whom the property in a hedge, ditch or fence is usually vested, and the legal obligation to repair the same. (m) The neglect to repair is an injury which may be compensated, 1st. by the occupier of the adjacent close distraining damage feasant cattle that escaped, through the insufficiency of the fence, into the land of such occupier; (n) or 2dly, his suing the wrongdoer for the trespass committed by his cattle; (0) 3dly, if the cattle of the adjacent occupier escape, and he thereby sustain (h) 1 & 2 W. 4. c. 32, post, Crim. Inj. i) 22 & 23 Car. 2, c. 9; 4 & 5 W. & M. c. 23, s. 10; 8 & 9 W. 3, c. 11, s. 4; Tidd, 9 ed. 963 to 968; ante, 25, 27, and post, chap. v. as to notices not to trespass. (j) Ld. Raym. 187, 1599; 1 Stra. 634. loss or trouble in recovering them, then he may support an action on the case for the consequence of the neglect to repair; (p) 4thly, the party who ought to have repaired could not sue for trespass committed in consequence of the defect in his fences. (q) 5thly. Perhaps between freeholders, the ancient proceeding to compel reparation by writ curia claudenda might be advantageously revived. (r) In an action on the case for not repairing, it suffices to allege generally that the defendant "debuit reparare," without showing the origin or consideration for the supposed liability, and this seems sufficient, although it should appear that the obligation originated by express agreement. (s) CHAP. IV. II. & III. INJU RIES TO REAL PROPERTY. NUISANCES not upon, but near ant's house or land, and reme FOURTHLY. Injuries by NUISANCES and other injurious acts, FOURTHLY. the cause of which is near to the house or land of the party complaining, but not upon the same, are the consequence of the complainsome wrongful act or omission of a party, who either ought not to have occasioned or permitted the same, or who ought to dies. remove the same. Such as injuries to the light or air, occasioned by improper obstruction of ancient windows; or arising from not cleansing cespools, watercourse, &c.; or by frightening wild fowl from a decoy by noises near the same; or by causing water to flow, or preventing it from flowing, to a party's estate. removal. 1. For these injuries also the remedies are prevention, 1. Remedies, compensation, or punishment. Prevention, by entering the land prevention and of the wrong-doer, and carefully abating or removing the nuisance; (t) but previous to which, at least where the injury is a mere continuance or omission, there should in general be a request to the wrong-doer himself to remove the matter complained of; (u) or the nuisance by building or otherwise may be prevented by Injunction. (x) 2. The remedy by action to recover damages for most nui- 2. Remedies by sances and injuries committed off the land of the party com action. (p) 2 Y. & Jer. 391; 1 B. & Ald. 59. (q) Ante, 194. (r) Ante, 195, note (m). (s) 3 T. R. 766; 1 Price's R. 27; 6 B. & Cres. 333, 338; 2 Saund. 114, a., b., c. (t) Raikes v. Townsend, 2 Smith's R. 9; 2 Salk. 459; Earl Lonsdale v. Nelson, 2 B. & Cres. 302; 3 Dowl. & R. 556; post, chap. vii. as to the abatement of nuisances. (r) 2 Russ. R. 121; 2 Swans. 333; 16 |