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GENERAL

RULES.

at the same time interferes with the immediate enjoyment of it in its uninjured state (k).

An interference with the actual enjoyment of property is an interference with the rights of the person actually in possession. Any damage to the permanent value of real property is an interference with the rights of the owner, and, of course, may be at the same time an invasion of the rights of the person in possession. Where one and the same person is both the owner of property, and actually in possession of it, as where a man owns the fee simple of land, in which he has granted no interest to any other person, and also resides on the land, it is clear that as he has all the rights that can be possessed over the land ; and that he, and he alone, can sue for any injury to the land, of whatever description ; for he is the sole person who has rights with regard to it which can be invaded. But it often happens that different persons have different interests in the same land. A., for example, is in possession of the land as tenant for years, and has therefore a right to the immediate enjoyment or possession of it, whilst B., his landlord, has not the possession of the land, but has an interest in the permanent value of the property, or, in other words, is interested as reversioner (I). In such a case, acts which are an injury to one of the persons interested in the property may be no injury, or a different injury to the other. The general rule, therefore, under consideration (m) gives rise to the two following subordinate rules :

(k) See, on this point, Lush, Practice, 3rd ed., 151 ; Addison, Torts 3rd ed., 278—280.

(l) The term reversioner is used as a convenient, though not strictly correct, description of any person who, not being in possession of land, has future interest in it.

(m) Taken in combination with Rule 78.

GENERAL
RULES.

SUBORDINATE RULE I.

The person

can

the pos

The person to sue for any interference with the immediate Sub

ordinate enjoyment or possession of land or other real property, Rule I. is the person who has possession of it, and no one can sue merely for such an interference who has not in posses

sion of possession.

land can

sue for Any one, therefore, who is in possession of land (n), interfersue for a trespass, i.e., an interference with his

ence with right to the immediate enjoyment or undisturbed pos

session. session of the property, or to use a convenient expression, can bring trespass (0).

Every entry upon land in the occupation of another, Trespass. constitutes a trespass, for which (in the absence of legal justification), an action is maintainable. The word trespass further, has a wider signification in legal than in popular language. “If,” for example, "one man throws stones, rubbish, or other materials of any kind on the land of another, or allows his cettle, poultry, or domestic animals to go upon another man's land, this is a trespass for which he is responsible in damages, unless he can show that his neighbour was bound by contract or prescription to fence for his benefit (p). To pour water out of a pail into another man's yard, or to fix a spout, so as to discharge water upon another man's land, or suffer filth to issue through a boundary wall, and to run over another's close or yard without his leave or permission is a trespass,

(n) The expression "land" is used for the sake of brevity ; but it must be borne in mind that "real property” includes many things-e.g., houses-not popularly included under the word land, and that it also includes rights over real property ; e.g., rights of way.

(o) Trespass lies for any direct and immediate interference with the possession of land, and is, therefore, the form of action most frequently referred to in this and the following pages with regard to the right of action possessed by the person in possession of land ; but there are cases where the injury is indirect, or where, for other reasons, trespass will not lie, still the same general principle applies. The person in possession must sue for interference with the right to the immediate enjoyment of property.

(p) Cox v. Burbidge, 13 C. B., N. S., 430 ; 32 L. J. 89, C. P. ; Mason v. Keeling, 1 L. Raym. 608 ; Dautry v. Huggins, Clayton, 32.

GENERAL
RULES,

may be

by any

unless a right of way over the adjoining close, or a right to discharge water upon it, or a right for the passage of waste water and refuse through it, has been gained "() (r). So, if the occupier is turned out of his dwelling-house, of which he has possession, this amounts in point of law to an injury

to the house, and may be sued for as a trespass (s). Trespass The owner in possession of his land may, of course,

bring trespass, but he sues in virtue, not of his ownerbrought

ship, but of his possession ; and the action, therefore, person in possession. may be brought by a tenant in possession, though he be

only a tenant at will, or (though this was at one time doubted), a mere tenant on sufferance (t). Nor is it necessary that the person in possession should, in order to support this action against a wrongdoer, have any title to the land whatever; for actual possession as owner is presumptive proof of property, and is sufficient against a mere stranger who cannot show any better title or authority (u); nor can the defendant in such an action set up as against the person actually in possession the right of a third party, in order to rebut the mere possessory right of the plaintiff, unless the defendant can show that he himself acted by, or under the authority of such third person (x). If, that is to say, A. is in actual possession of land on which X., a stranger, with no title whatever, trespasses, X. cannot defend himself in an action brought by A. for the trespass, by showing that some third person M. was entitled to possession (y). The plaintiff was possessed of glebe land,

(1) Reynolds v. Clarke, 2 Ld. Raym. 1399.
(r) Addison, Torts, 3rd ed., 256.
(s) Meriton v. Coorbes, 9 C. B. 972 ; 19 L. J. 336, C. P.

(t) Heyden v. Smith, 13 Coke, 67 ; White v. Bailey, 10 C. B. 227 ; 30 L. J. 253, C. P. ; Bacon, Abr., Trespass, C. 3.

; (u) Graham v. Peat, 1 East, 244 ; Purnell v. Young, 3 M. & W. 288 ; Browne v. Dawson, 12 A. & E. 624.

(a) Bertie v. Beaumont, 16 East, 33; Bullen, Pleadings, 3rd ed., 417.

(y) Of course, if X. acted under M.'s authority, he can show this in defence; but this is, in fact, to show that X. did not commit a trespass, and is in no way inconsistent with the principle that mere possession is sufficient basis on which to maintain an action against a wrong-doer.

a

GENERAL
RULES.

of servant

sion of master.

under a lease void by the statute 13 Eliz. c. 20, and it was held (2), that he might maintain trespass against a wrong-doer, on the ground that any possession is legal possession against a wrong-doer; for it is an established maxim, that “trespass is a possessory action, founded merely on the possession, and it is not necessary that the right should come in question " (a).

The occupation, moreover, of a servant or agent is the Occupation possession of his master or employer, and it would seem, is possesis not the possession of the servant. Where a servant was put into occupation of a cottage, and had less wages on this account, but, nevertheless, did not occupy it as a tenant; it was held, that the master might bring an action, treating the occupation as his own, for that “this was the occupation of the plaintiff through the medium of his servant, which is in law the virtual occupation of the master and not of the servant” (1).

On the other hand, it is absolutely essential to the Trespass maintenance of the action that the plaintiff should have brought by possession, and possession means exclusive possession (c). person Hence, commissioners of sewers, who had as such com- possession. missioners erected a wall, have been held incapable of suing a person who broke it down, because the authority given them did not vest in them a possessory interest (d). But when contractors for making a navigable canal, had with the permission of the owner of the soil erected a dam upon his close for the purpose of completing their work, they were considered to have sufficient possession to enable them to maintain trespass against a wrongdoer (e).

“ The dam," say the Court in the latter case, erected by the plaintiffs at their own expense, and with

cannot be

without

was

(z) Graham v. Peat, 1 East, 243.

(a) Lambert v. Stroother, Willes, 221 ; Asher v. Whitlock, L. R. 1 Q. B. 1, 5, judgment of Cockburn, C. J.

(6) Bertie v. Beaumont, 16 East, 36, judgment of Grose, J.

(c) See Hill v. Tupper, 32 L. J. 217, Ex. ; 2 H. & C. 121 ; and on. 37— 39, ante.

(d) Newcastle v. Clark, 2 Moore, 266. (e) Dyson v. Collick, 5 B. & Ald. 600.

GXNERAL
RULES.

their own materials, upon the locus in quo, with the consent of the owner of the soil, for a special purpose. Until that purpose was completed, the plaintiffs were entitled to the possession of the dam. Now, it is perfectly clear that the person in possession of property, whether rightfully or wrongfully, may maintain trespass against a mere wrong-doer. Indeed, if they had any other than a partial or subordinate interest in the dam, trespass is the only proper remedy. The case is distinguishable from that of The Duke of Newcastle v. Clark (D), for there the commissioners of sewers had no possession, but had a mere right to enter upon the locus in quo, and to do certain acts. In Welch v. Nash (g), the posts were put upon the lands of another without his permission; and yet it was held that the party who put them there might recover in trespass for taking them away, where the general issue only was pleaded. Now, that could be only on the ground that the posts were the property of the plaintiff'; for if they were not so, it would have been a good defence to the action ” (h). Trespass again, will not lie for entering into a pew or seat in a church, because the plaintiff has not the exclusive posses

sion, the possession of the church being in the parson"(i). Mere Mere occupation does not of itself amount to posoccupation is not session. Thus the occupation of a servant is, as before possession noticed, not his possession, and he cannot, it would

seem, maintain trespass (k); and the following case well illustrates the difference between occupation and possession. The master of a school, who had possession of the school-room, on being dismissed by the trustees, gave up the room into their possession; he afterwards re-entered, and occupied it for eleven days, at the end of which time he was forcibly ejected by the trustees. It

(s) 2 Moore, 226.
(g) 8 East, 394.
(h) Dyson v. Collick, 5 B. & Ald. 602, 603, per Curiam.
(i) Stocks v. Booth, 1 T. R. 428.

(k) Bertie v. Beaumont, 16 East, 33. Compare Wright v. Stavert, 2 E. & E. 724 ; 29 L. J. 161, Q. B.

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