Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Tresspass

IN the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man’s real property without any amotion from it.

THE second species therefore of real injuries, or wrongs that affect a man’s lands, tenements, or hereditaments, is by trespass. Trespass, in its largest and most extensive sense, signifies any transgression or offense against the law of nature, of society, or of the country in which we live; whether it relates to a man’s person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie: taking or detaining a man’s goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also non-performance of promises or undertakings is a trespass; upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression, or trespass in its largest sense; for which we have already seen,1 that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, and action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

BUT in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression. The Roman law seem to have made a direct prohibition necessary, in order to constitute this injury: “qui alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur.”2 But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another’s lands, (unless by the owner’s leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offense was willful or inadvertent, and by estimating the value of the actual damage sustained.

EVERY unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause, quare clausum querentis fregit. For every man’s land is in the eye of the law enclosed and set apart from his neighbor’s: and that either by a visible material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.3

ONE must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass: or at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land.4 Thus if a meadow be divided annually among the parishioners by lot, then, after each person’s several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes;5 for they have an exclusive interest and freehold therein for time. But before entry and actual possession, one cannot maintain an action of trespass, though he has the freehold in law.6 And therefore an heir before entry cannot have this action against an abator;7 though a disseizee might have it against a disseizor, for the injury done by the disseizin itself, at which time the plaintiff was seized of the land: but he cannot have it for any act done after the disseizin, until he has gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the possession of the owner. But by the statute 6 Ann. c.18. if guardian or trustee for any infant, a husband seized jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over an continue in possession of the lands or tenements, they are now adjudged to be trespassers; and the reversioner or remainder-man once in every year, by motion to the court of chancery, procure the cestuy que use to be produced by the tenant of land, or may enter
thereon in case of his refusal or willful neglect. And, by the statutes of 4 Geo. II. c.28. and 11 Geo. II. c.19. in case after the determination of any term of life, lives, or years, any person shall willfully hold over the same, the feoffor is entitled to recover by action of debt, either a rent of double the annual value of the premises, in case he himself has demanded and given notice in writing to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from any tenant having power to determine his lease, and he afterwards neglects to carry it into due execution.

A MAN is answerable for not only his own trespass, but that of his cattle also: for by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on) and they there tread down his neighbor’s herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrain the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentioso , by action. And the action that lies in either of these cases, of trespass committed upon another’s land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus suit, conculavit, et consumpsit, etc8: for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the defendant or his beasts coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damage; such however as the jury shall think proper to assess.

IN trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant’s cattle) the declaration may allege injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day’s separate offense.9 But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated act of trespass committed, (as cutting down a certain number or trees) they may be laid to be done, not continually, but at diverse days and times within a given period.10

IN some cases trespass is justifiable; or, rather, entry on another’s land or house shall not in those cases be accounted trespass: as if a man comes there to demand or pay money, there payable; or to execute, in legal manner, the process of the law. Also a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because, when a man professes the keeping of such inn or public house, he thereby gives a general license to any person to enter his doors. So a landlord may justify entering to distrain for rent; a commoner to attend his cattle, communing on the estate; for the apparent necessity of the thing.11 Also it has been said, that by the common law and custom of England the poor are allowed to enter and glean upon another’s ground after the harvest, without being guilty of trespass:12 which humane provision seems borrowed from the Mosaic law.13 In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man’s land; because the destroying such creatures is profitable to the public.14 But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio:15 as if one comes into a tavern and will not go out in reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass.16 But a bare non-feasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him.17 So if a landlord distrained for rent, and willfully killed the distress, this by the common law made him a trespasser ab initio:18 and so indeed would any other
irregularity have done, till the statute 11 Geo. II. c.19. which enacts that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action on the case for the real specific injury sustained, unless tender of amends has been made. But still, if a reversioner, who enters on pretense of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio.19 So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such noxious animals for the public good, yet it is held20 that such things must be done in an ordinary and usual manner; therefore that being an ordinary course to kill them viz. by hunting the court held that the digging for them was unlawful.

A MAN may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defense brings the title of the estate in question. Thus is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; thought it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land: whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered but damages for the wrong committed.

IN order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c.6. and 22 and 23 Car. II. c.9. §.136. that where the jury who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages; unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8&9; W. III. c.11. which enacts, that in all actions of trespass, wherein it shall appear that the trespass was willful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs. Every trespass is willful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to be to harass and distress the plaintiff. The other exception is by statute 4&5 W.&M. c. 23. which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling upon another’s land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs.21

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    See pag. 123.
     2.    Inst. 2.1.12.
     3.    F.N.B. 87,88.
     4.    Dyer.285. 2 Roll. Abr. 549.
     5.    Cro. Eliz.421.
     6.    2 Roll. Abr.553.
     7.    11 Rep.5.
     8.    Registr. 94.
     9.    2 Roll. Abr. 545. Lord Raym. 240. 7 Mod. 152.
   10.    Salk. 638,639. Lord Raym. 823.
   11.    8Rep.146.
   12.    Gilb. Ev. 253. Trials per pais. ch.15. pag. 438.
   13.    Levit. 19:9, etc. 23:22. Deut. 24:19, etc.
   14.    Cro. Jac.321.
   15.    Finch. L.47. Cro. Jac 148.
   16.    2 Roll. Abr. 561.
   17.    8 Rep. 147.
   18.    Finch. L. 47.
   19.    8 Rep. 146.
   20.    Cro.Jac. 321.
   21.    Lord Raym. 149.