subject of property, and who is entitled to possess it, before Iwe can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not necessarily coincide either with actual physical control or the present power thereof (the "deteution" of Continental terminology), or with the right to possess (constantly called "property" in our books); and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A. lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.'s servant has physical possession, better named custody or detention, but neither legal possession (h) nor the right to possess; B. has legal and rightful possession, and the right to possess as against every one but A.; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away (de bonis asportatis), and as such it was and is a necessary goods condition of the offence of larceny at common law.

The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter In Roman law there is no such general tendency, though the results are often similar (i).

course.

(h) Yet it is not certain that he could not maintain trespass against a stranger; see Moore v. Robinson, 2 B. & Ad. 817. The law about the custody of servants and persons in a like position has vacil

lated from time to time, and has never been defined as a whole.

(i) Cp. Holland," Elements of Jurisprudence," 5th ed. pp. 166-171.

Trespass and conversion. Trespass is the wrongful disturbance of another person's possession of land (j) or goods. Therefore it cannot be committed by a person who is himself in possession; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess (k); on the other hand the person wronged was constantly allowed at his option to proceed against a mere

(j) Formerly it was said that trespass to land was a disturbance not amounting to disseisin, though it might be "vicina disseisinae," which is explained by "si ad commodum uti non possit." Bracton, fo. 217 a. I do not think this distinction was regarded in any later period, or was ever attempted as to goods.

(k) See Smith v. Milles, 1 T. R. 480, and

note that "constructive possession," as used in our books, includes (1.) possession exercised through a servant or licensee; (i.) possession conferred by law, in certain cases, e. g. on an executor, independently of any physical apprehension or transfer; (iii.) an immediate right to possess, which is distinct from actual possession.

trespasser as if the trespasser had only abused a lawful or at any rate excusable possession.

Alternative remedies. In the later history of common law pleading trespass and conversion became largely though not wholly interchangeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover (1), so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby

(1) Blackst. iii. 152.

Alternative remedies. The gist of the action of detinue is the continuing nature of the act of detainer, whereas, trespass and trover are torts founded on an act which becomes complete by a single performance. Wittick v. Traun, 27 Ala. 562, 570; Harris v. Hillman, 26 Ala. 38; Charles v. Elliott, 4 Dev. & B. 468; Jennings v. Gibson, 1 Miss. 234; Haley . Rowan, 5 Yerg. 301.

Thus, detinue cannot be maintained after the destruction of the chattel in dispute. Lindsey v. Perry, 1 Ala. 203; Caldwell v. Fenwick, 2 Dana, 232. Nor has plaintiff in detinue the right to elect to take damages instead of the specific property when tendered by defendant. Robinson v. Richards, 45 Ala. 354.

That the distinction between trespass and trover is sometimes of practical importance even under the codes, is shown in Grafton v. Carmichael, (48 Wis. 6C0). This case is an action arising out of the seizure of certain goods of the plaintiff by the sheriff under the direction of the defendant. The petition charged the defendant with the taking of certain property of the plaintiff wrongfully and converting the same to his own use. The original taking under the attachment writ by the sheriff was valid but the sale thereunder was invalid by reason of certain omissions. The plaintiff's right to recover hinged upon whether his action was in trespass or trover-if the former, recovery was barred, as the original taking by the defendant was under a valid writ—if the latter, the plaintiff was entitled to recover for the actual conversion suffered under the defendant's illegal sale.

In the United States the action of replevin, called claim and delivery in some of the code States, has come to be the general remedy to determine the right of possession to specific chattels, its practical use in this respect in England being limited to cases of distress for rent or for cattle taken damage feasant.

a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (m), but while it exists we must take account of it.

What shall be said a trespass. Trespass may be committed by various kinds of acts, of which the most obvious are entry on another's land (trespass quare clausum fregit), and taking another's goods (trespass de bonis asportatis) (n). Notwithstanding that trespasses punishable in the king's court were said to be vi et armis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. Every invasion of private property, be it ever so minute, is a

199.

(m) See per Thesiger L. J., 4 Ex. Div.

(n) The exact parallel to trespass de bonis asportatis is of course not trespass

66

qu. cl. fr. simply, but trespass amounting to a disseisin of the freeholder or ouster of the tenant for years or other interest not freehold.

trespass (o). There is no doubt that if one walks across a stubble field without lawful authority or the occupier's leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor (p), a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner's will thus expressed. But even so, persons using the land are no more than "bare licensees," and their right is of the slenderest.

(0) Entick v. Carrington, 19 St. Tr. 1066. "Property" here, as constantly in our books, really means possession or a right to possession.

(p) As a matter of fact, the Dartmoor hunt has an express licence from the Duchy of Cornwall.

What shall be said a trespass. Any unlawful interference with the possession of the property of others, whether with or without force, is a trespass. Dexter v. Cole, 6 Wis. 319; Norvell v. Gray, 1 Swan, 96; Brown v. Perkins, 1 Allen, 89; Hatch v. Donnell, 74 Me. 163; Newkirk v. Sabler, 9 Barb. 652; Mairs v. Real Estate Assoc., 89 N. Y. 498; Alexander v. Hard, 64 N. Y. 228; Halligan v. Chicago & R. I. R. Co., 15 Ill. 558; Gunsolus v. Lormer, 54 Wis. 630; 12 N. W. Rep. 62; Moore v. Perry, 61 Mo. 174; Bascom v. Dempsey, 143 Mass. 409; Chandler v. Walker, 21 N. H. 282.

Trespass lies though the only damage be the treading down of turf. Dougherty v. Stepp, 1 Dev. & B. 371. Or, even if no grass or herbage be in existence on the close. Nensorn v. Anderson, 2 Ired. 42. See, ante, pp. 9, 10.

Mere words do not constitute a trespass. Wheeler v. Moore, Wright, 408. But one who stops on the sidewalk in front of a house to abuse its occupant is a trespasser. Adams v. Rivers, 11 Barb. 390.

Sign painting on a wall of a house though with the tenant's consent is an interference with the owner's possession. Devlin v. Snellenberg, 132 Pa. St. 186; 18 At. Rep. 1119. But the mere use of gas after notice of arrears is no trespass. Alexander Mining Co. v. Painter, 28 N. E. Rep.