deprive him of the profits for which he has paid, and to permit the defendant to receive them; and for this injury the plaintiff must be remediless, or seek a remedy by a suit at law to recover damages." That is, if the defendant should resist the plaintiff's entry, the plaintiff would be driven to two actions by the position taken by the defendant's counsel; one to obtain possession and another to recover for the mesne profits.

Mitchell, 1 Hill (S. Car.), 404. There the plaintiff had purchased property at sheriff's sale, and, as an act of kindness, had permitted it to remain in the possession of the debtor. It was afterwards levied upon in execution against the debtor by a subsequent creditor who had notice of the plaintiff's title; and for this act the plaintiff brought trespass, and recovered.

Nor is an actual entry necessary by (But now by statute in Massachu- the grantee of one in possession so as setts the demandant in a real action to enable him to maintain an action for recovers for the rents and profits in the trespass committed by a person who same suit; and a subsequent action for had been upon the land by license of them cannot be maintained. Raymond the grantor, and had remained after the v. Andrews, 6 Cush. 265. See also license had expired and the plaintiff had Richards v. Randall, 4 Gray, 53; Judd purchased. Reed v. Merrifield, 10 Met. v. Gibbs, 8 Gray, 435. So it is in New 155. In this case one Chamberlain conYork. Jackson v. Leonard, 6 Wend. veyed to the assignor of the defendant 534; Broughton v. Wellington, 10 all the timber on his land, the assignor Wend. 566; Leland v. Tousey, 6 Hill, "to have five years to get off the tim328. And this, it is believed, is now ber, and to have no right to the wood generally the case in this country. If, which might arise from cutting the however, possession be regained with- timber." Chamberlain afterwards conout suit, an action may then be main- veyed the land to the plaintiff's father, tained for the mesne profits and for the "excepting a lease of all the timber wrongful entry. Leland v. Tousey, supra. thereon given," as above stated. The But possession is still necessary. Ib. grantee conveyed to the plaintiff, who In this case, Cowen, J., said that the had not made an entry. It was constatute which took away the right of a tended, in trespass for entering and separate action for mesne profits was to carrying away timber after the lapse of be understood of mesne profits strictly, the five years, that the (so-called) lease the right to which results from a re- of Chamberlain conveyed an interest in covery in ejectment. The original the land, and that, after its expiration, entry is still the subject of an action of he became tenant at sufferance, and trespass; and so are mesne profits where that the action therefore would not lie; the plaintiff obtains possession without but the court ruled otherwise. The insuit. The statute, moreover, was to strument, it was held, was not a grant be restricted to cases where the claim of any interest in the land so as to give for mesne profits was against the same to the defendant any exclusive possesperson or persons who were made sion. The learned judge observed that defendants in the ejectment; such as a mistake was sometimes made by not would be concluded by the judgment in distinguishing between a right to enter that action.) on land for specified purposes, under a See also in this connection Poole v. license or contract, and a right of pos

WILLIAMS v. ESLING.

(4 Barr, 486. Supreme Court, Pennsylvania, 1846.)

Entry upon Land. Damage. An action lies for a trespass upon a right of way without proof of actual damage.

TRESPASS on the case for obstructing a right of way over a court. The judge charged the jury that the plaintiff must show some actual hindrance or obstruction to his passage; and that a mere deposit of articles in the court, if removed before causing obstruction to the plaintiff, would not give a cause of action. J. W. Biddle, for plaintiff in error. McIlvaine, contra.

any

GIBSON, C. J. An action was maintained in Kirkham v. Sharp, 1 Whart. Rep. 333, by the grantee of a private way, against the owner of the soil, standing in the place of the grantor; and avowedly without proof of special damage, or actual obstruction in any particular instance. The necessity of such proof was not even alleged. The difference between that case and this is, that the action here is not, as it was there, against the owner of the soil, but against an intruder without any pretence of title whatever, a difference that will scarce be thought to be unfavorable to the present plaintiff. The English courts seem to have wavered as to the application of the principle to analogous cases; but the only thing like a conflicting authority in the case of a way is the dictum in Woolrych on Ways, p. 283, that it is usual for the plaintiff to prove some damage from an obstruction of a private way, though to the smallest amount, merely to satisfy the jury that he has been unable, in consequence of the defendant's conduct, to use his right in so ample and beneficial a manner as he had been accustomed to do. But it is not said that proof of special damage is indispensable, or that it is the basis of the action. The case cited for the dictum is Pindal v. Wadsworth, 2 East, 154, which, however, is the case of an action, not for obstructing a private way, but for injuring a common by taking away the manure dropped on it by the cattle; and the court certainly did say, that if the commoner who sued for it was not injured by it, he would not have a right to reparation; but it was also said, that the act was a necessary

and an immediate damage. In no English case has there been raised a question about the necessity of special damage in an action like the present; but analogies from actions for surcharging a common bear strongly upon it. Hobson v. Todd, 4 Term Rep. 71, was such an action; and Mr. Justice Buller said that the plaintiff was entitled to recover without proof of specific damage. That was one ground of his opinion; "but there is another ground," said he, "on which the action may be supported, which is, that the right has been injured." The solution of the difficulty is in that one word. In Pastorius v. Fisher, 1 Rawle, 27, it was said that the law implies damage from the violation of every right; but that, without proof of actual detriment, it implies the smallest appreciable quantity. Now, the grant of a way is exclusive, at least as to strangers; and that every intrusion into the enjoyment of an exclusive right subjects the wrongful participant to an action by the owner of it, was directly adjudged in the case of the dippers at Tunbridge Wells (Weller v. Baker, 2 Wils. Rep. 422), who recovered on an action against one who had usurped the office of a dipper, not having been duly chosen at the court baron. The court held that the very act of intrusion was both an injury and a damage, an injury, by disturbing the plaintiffs in the exercise of their right; and a damage, in depriving them of gratuities which they might have received; and it was held that an action on the case lies for merely a possibility of damage. Yet the dippers were not more impeded in their functions by the intrusion there, than was the plaintiff in the actual use of the alley by the intrusion here; for they were left to get all they could earn, and it was not certain they would have earned a farthing of what the intruder got. But their exclusive right was violated, and a possibility of detriment from it was held to be a subject of compensation. In Hobson v. Todd, Mr. Justice Buller applied the same principle to an action by a commoner, saying that had it not been for the surcharge, the plaintiff's cattle might have eaten every blade of grass that had been eaten by the supernumerary cattle of the defendant. Such a plaintiff might undoubtedly recover without proof that the surcharge had occasioned a scarcity; and why not the plaintiff before us, without proof that ground enough had not been left for the convenient enjoyment of his right? There is an error in forgetting that he is entitled to the exclusive use

of the whole of it, which would equally justify any usurpation of a man's right of property that left him enough for a comfortable subsistence. The very breaking in upon the defendant's privacy was a damage; and if the plaintiff could not sue for it because the extent of it was inappreciable, the defendants might establish a right of participation in the use, by acts of intrusion repeated for twenty years, just as a wrong-doer, it was said by Mr. Justice Buller, in Hobson v. Todd, and by Mr. Justice Grose, in Pindar v. Wadsworth, might establish a right of common, because the cattle of the commoners had been left enough of grass to keep them from starving. With much more force is that principle applicable to the case before us. The legal title to the soil is in the common-law heir of the purchaser of it, who annexed the use of it to the Chestnut Street lots, with which he subsequently parted; and as he has no beneficial interest involved in it, or motive to burden himself with a lawsuit, for a trespass on it, the defendants would certainly gain a concurrent right to the easement by adverse user of it, if no one else could sue for any thing short of an actual hindrance in the enjoyment of it. Who would contest the matter with them? The plaintiff would scarce bring a separate action for each obstruction, or sue for damage to the amount of a few cents, for the detention of his carriage or his cart for a few minutes; for though these petty annoyances are exceedingly irksome in the aggregate, not one of them, singly, would be worth the trouble of a lawsuit. He might as well give up his right at once, as attempt to maintain it by repeated actions for repeated hindrances. But the measure of damages is not the extent of each particular loss. The right being established, a jury is at liberty to enforce it, by making the offender smart for any further violation of it. When the plaintiff showed that impediments were placed in the alley which might have prevented him from attempting to use it, he showed enough to entitle him to a remedy without proof of an attempt actually frustrated; and an intruder can ask no more.

Judgment reversed, and venire de novo awarded.