satisfied at will, which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest (e). In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. "He who has the property may have a writ of trespass, and he who has the custody another writ of trespass" (ƒ). " If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land” (d). And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. "If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him nothwithstanding the lending" (g).

An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession (h).

Rights of derivative possessors. Derivative possession is equally protected, through whatever number of removes

(e) See Barker v. Furlong, '91, 2 Ch. 172, 60 L. J. Ch. 368.

(ƒ) 48 Ed. III. 20, pl. 8.

(g) Litt. s. 71. If any doubt be implied in Littleton's "it is said," Coke's commentary removes it. Such an act

"concerneth so much the freehold and inheritance, as it doth amount in law to a determination of his will."

(h) Holford v. Bailey (1849), 13 Q. B. 426, 18 L. J. Q. B. 109, Ex. Ch.

Co., 55 N. H. 540; Lindenbower v. Bentley, 86 Mo. 515; Delaney v. Erickson, 10 Neb. 492. The landlord of a tenant at will may maintain trespass. O'Brien v. Cavanaugh, 61 Mich. 368; 28 N. W. Rep. 127.

it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner: nay more, he may re-deliver possession to the bailor for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee (i). Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be.

Troublesome

Possession derived through trespasser. questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession (j). The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Simi

(i) Roberts v. Wyatt (1810), 2 Taunt. 268.

(j) Wilson v. Barber (1833), 4 B. & Ad. 614.

Possession derived through trespassers.

The true owner of goods

may recover them from the assignee of one who obtains them by fraud. Artman v. Walton, 12 Phila. Rep. 442. Though there can be but one satisfaction trover lies against successive conversioners of the same property. Mathews v. Menadger, 2 McLean, 145. And against bona fide purchasers from the original trespassers. Riley v. Boston Water Power Co., 11 Cush. 11; Champney v. Smith, 15 Gray, 512; Everett v. Coffin, 6 Wend. 603; Hoffman v. Carow, 22 Wend. 285; Spraights v. Hawley, 39 N. Y. 441; Garard v. Pittsburgh etc. R. Co., 29 Pa. St. 154.

larly where a bailee wrongfully delivers the goods over to a stranger; though the bailee's mere assent will not prevent a wrongful taking by the stranger from being a trespass (k).

The old law of real property was even more favourable to persons claiming through a disseisor; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner (7), and in the case of goods must submit to recapture if the owner can and will retake them (m). In the theoretically possible case of a series of changes of possession by independent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of "entry by relation" and the practice as to recovery of mesne. profits. But this too is now, as regards civil liability, a matter of mere curiosity (n).

(k) 27 Hen. VII. 39, pl. 49; cp. 16 Hen. VII. 2, pl. 7; Mennie v. Blake (1856), 6 E. & B. 842, 25 L. J. Q. B. 399.

(1) 12 Edw. IV. 13, pl. 9; but this was probably an innovation at the time, for Brian dissented. The action appears to have been on the case for spoiling the goods.

(m) See Blades v. Higgs (1865), 11 H. L. C. 621, 34 L. J. C. P. 286, where this was assumed without discussion, only the question of property being argued. But probably that case goes too far in allowing recapture by force, except perhaps on fresh pursuit: see p. 470, below.

(n) The common law might conceivably have held that there was a kind of

privity of wrongful estate between an original trespasser and persons claiming through him, and thus applied the doctrine of continuing trespass to such persons; and this would perhaps have been the more logical course. But the natural dislike of the judges to multiplying capital felonies, operating on the intimate connexion between trespass and larceny, has in several directions prevented the law of trespass from being logical. For the law of trespass to land as affected by relation, see Barnett v. Guildford (1855), 11 Ex. 19, 24 L. J. Ex 280; Anderson v. Radcliffe (1860), Ex. Ch., E. B. & E. 819, 29 L. J. Q. B. 128, and Bigelow L. C. 361-370.

VIII.- Wrongs to Easements, etc.

Violation of incorporeal rights. Easements and other incorporeal rights in property, "rather a fringe to property than property itself " as they have been ingeniously called (o), are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled: "a man who has used a way ten years without title cannot sue even a stranger for stopping it" (p). The only possession that can come in question is the possession of the dominant tenement itself. the texture of legal rights and powers to which the "fringe" is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage (7); the action was on the case under the old forms of pleading, since trespass was technically im

(0) Mr. Gibbons, Preface to the fifth edition of Gale on Easements, 1876. (p) Holmes, The Common Law, 240, 382.

(g) 1 Wms. Saund. 626; Harrop ▼ Hirst (1868), L. R. 4 Ex. 43, 46, 38 L. J. Ex. 1.

Violation of incorporeal rights. Possession for less than the prescriptive period will not raise the presumption of an easement by grant, and the possession must be continuous. Sargent v. Ballard, 9 Pick. 251; Gloucester v. Beach, 2 Id. 60, n; Medford v. Pratt, 4 Id. 222; Gayetty v. Bethune, 14 Mass. 49, 55; Parker v. Foote, 19 Wend. 309; Luce v. Carley, 24 Id. 451; Kirschmer v. Western & A. R. Co., 67 Ga. 760; Claflin v. Boston & A. R. Co., 157 Mass. 489; 32 N. E. Rep. 659; Texas & W. R. Co. v. Wilson (Tex.), 18 S. W. Rep. 352.

An action of trespass cannot be brought for the interference with a right to carry water over a grantor's land. Baer v. Martin, 8 Blackf. 317. But in Massachusetts a few similar rights are made real property by statute and such action can be maintained. Jackson v. Rounseville, 5 Metc. 127. Generally, trespass lies for the disturbance of rights in incorporeal hereditaments, though practically these interferences are usually continuous in nature and best remedies in equity. See Tranger v. Sassaman, 14 Pa. St. 514.

possible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff's option.

To consider what amounts to the disturbance of rights in re aliena is in effect to consider the nature and extent of the rights themselves (r), and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given.

Franchises and incorporeal rights of the like nature, as patent and copyrights, present something more akin to possession, for their essence is exclusiveness; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. "Trespass lies for breaking and entering a several fishery, though no fish are taken." And so it has always been held of a free warren (s). But the same remark applies; in almost every disputed case the question is of defining the right itself, or the conditions of the right (r); and de facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title.

IX.- Grounds of Justification and Excuse.

Licence. Acts of interference with land or goods may be justified by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That consent which, without passing any interest in the

(r) Thus Hopkins v. G. N. R. Co. (1877), 2 Q. B. Div. 224, 46 L. J. Q. B. 265, sets bounds to the exclusive right conferred by the franchise of a ferry, and Dalton v. Angus (1881), 6 App. Ca. 740, 50 L. J. Q. B. 689, discusses with the utmost fulness the nature and extent of the right to lateral support for buildings. Both decisions were given in form, on a claim for damages from alleged wrongful acts. Yet it is clear that a work on Torts is not the place to consider the many and diverse opinions expressed in Dalton v.

Angus, or to define the franchise of a ferry or market. Again the later case of Attorney-General v. Horner (1885),11 App. Ca. 66, 55 L. J. Q. B. 193, interprets the grant of a market in sive juxta quodam loco, on an information alleging encroachment on public ways by the lessee of the market, and claiming an injunction.

(8) Holford v. Bailey, Ex. Ch. (1848–9), 13 Q. B. 426, 18 L. J. Q. B. 109. See the authorities collected in argument, S. C. in court below, 8 Q. B. at p. 1010.