Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Chap. IV.

Station yards.

Trespasses by cattle and do

This enactment particularly applies to the regulations in force for the management of their station yards by railway companies. Thus, a railway company was possessed of a thoroughfare which had the appearance of a public street. The company allowed certain cabs to stand in the thoroughfare upon payment of a weekly sum by the drivers. A person, not being one of the drivers who paid, stood his cab in the thoroughfare and refused to leave when requested on behalf of the company to do so; it was held that he was a wilful trespasser within the 3 & 4 Vict. c. 97, s. 16 (ƒ).

Where an owner of lands severed by a railway claimed compensation from the company, and it was submitted to a jury, who awarded him compensation, on the footing that there was to be a total separation of the land without communication being made, and he received the amount awarded as such compensation; the verdict of the jury, and the receipt of compensation under it, was held to be an arrangement with the company, and consequently he had no right afterwards to cross the railway for the purpose of occupying his lands, and became in so doing, a trespasser within 3 & 4 Vict. c. 97, s. 16 (g).

The owner of domestic animals, such as oxen and horses, mestic animals. is liable for trespasses committed by them on the land of another (h). "It has, moreover," observes Lord Coleridge, C. J., "been held again and again, that there is a duty on a man to keep his cattle in, and if they get on another's land it is a trespass; and that is irrespective of any question of negligence, whether great or small" (i). Whether the owner of a dog is answerable for every unauthorized entry of the animal into the land of another, is doubtful (k). Park, J., was of opinion that a dog jumping into a field without the consent of his master was not a trespass for which an action would lie (). It has been attempted to draw a distinction in this respect between dogs and larger domestic animals, such as oxen and horses, on account of

(f) Foulger v. Steadman, L. R. 8 Q. B. 65; 42 L. J. M. C. 3; Hole v. Digby, 33 L. T. 824.

(g) Manning v. Eastern Co. Rail. Co., 12 M. & W. 237; 13 L. J. Ex. 265. See also Jones v. Taylor, 1 E. & E. 20, as to what constitutes a wilful trespass under this section.

(h) Comyn's Dig. Trespass (c). Lee v. Riley, 34 L. J. C. P. 212; Ellis v. Loftus

[blocks in formation]

Trespass in search of game.

the difficulty of keeping dogs under restraint, and the slightness Chap. IV. of the damage which their wandering ordinarily causes (m). Trespass in search of game is a criminal offence by statute (n), but entry on another man's land merely for the purpose of picking up dead game is not such a trespass as was contemplated by the Act of Parliament (o).

fences.

At common law the owners of adjoining closes are not bound Boundaries and to fence either against or for the benefit of each other (p), but in the absence of fences each owner is bound to prevent his cattle or other animals from trespassing on his neighbour's premises (q). By prescription, however, a landowner may be bound to maintain a Prescriptive obligation to fence upon his land for the benefit of the occupier of the adjoining maintain close (r), and if through want of repair of the fence his neighbour's cattle break through and do damage, an action of trespass for injury done by the cattle will not lie at the suit of him who was bound by prescription to fence (s).

Where the owner of two adjoining closes (A. and B.) separated by a fence and a gate, which had always been repaired by the occupier of B., sold A. to the plaintiff, and two years afterwards sold B. to the defendant, it was held that the latter was not bound to repair the gate, unless he or his vendor had made some specific bargain with the plaintiff to that effect, and that the doing of occasional repairs was not evidence of such bargain (t).

There is no implied obligation on the part of a lessor to keep up the fences of closes which he retains in his own hands, and which abut upon the land demised to a tenant, so as to prevent the tenant's cattle from straying on to them (u).

A hedgerow which forms the boundary of two estates, in general belongs to the owner of the estate who has, either himself, or whose tenants have, been in the habit of cutting and repairing

(m) See Judgment of Willes, J., in Read v. Edwards, supra; Mason v. Keeling, 1 Ld. Raym. 606; 12 Mod. Rep. 336.

(n) 1 & 2 Wm. 4, c. 32, s. 30.

(0) Kenyon v. Hart, 34 L. J. M. C. 87; distinguishing Osbond v. Meadows, 31 L. J. M. C. 238.

(p) Hilton v. Ankesson, 27 L. T. 519. (q) Lawrence v. Jenkins, L. R. 8 Q. B. 274; Churchill v. Evans, 1 Taunt. 529. As a rule it is the duty of the actual occupier, and not of the landlord, to keep up the fences: per Buller, J., Cheetham

v. Hampton, 4 T. R. 318; Rooth v.
Wilson, 1 B. & Ald. 59.

(7) Gale on Easements, 4th ed. 460.
(s) Nowel v. Smith, Cro. Eliz. 709;
Powell v. Salisbury, 2 Y. & J. 391.

(t) Boyle v. Tamlyn, 6 B. & C. 329.
As to the obligation of copyholders to
fence against the occupiers of enclosed
lands formerly wastes of the manor,
see Barber v. Whiteley, 34 L. J. Q. B.
212.

(u) Erskine v. Adeane, L. R. 8 Ch. 756; 42 L. J. Ch. 835.

fences.

Property in boundary hedges and

ditches.

Chap. IV. it (x). The rule, observes Lawrence, J., about ditching is this: "No man making a ditch can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land; he is of course bound to throw the soil which he digs out upon his own land, and often, if he likes it, he plants a hedge on the top of it; therefore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser; no rule about four feet and eight feet has anything to do with it" (y).

Property in trees.

Property in party walls.

Right of support from

party-wall.

In some cases the adjoining owners are tenants in common of the hedge forming the boundary between their respective properties; where this is so, one tenant may maintain trespass against his co-tenant, if he grub up the hedge (z).

If two adjoining owners are tenants in common of a boundary hedge, it seems to follow that they will also be tenants in common of any trees which stand in the hedge (a).

The common user of a wall separating lands belonging to different owners is prima facie evidence that the wall and the land on which it stands belong to the owners of those adjoining lands, in equal moieties as tenants in common (b). When a wall for a few feet from the ground is the dividing wall between two houses, and above that is the outside wall of one of them, the lower part may be a "party-wall" and the upper part is not (c).

If one of the two tenants in common of a party-wall excludes the other from the use of it, the remedy of the excluded tenant is to remove the obstruction (d). There may be, however, such an actual ouster from the possession of the wall by one tenant in common, as to constitute a trespass for which the tenant ousted may maintain an action (e).

Where several houses belonging to the same owner are built together, so that each requires the mutual support of the adjoining house, and the owner parts with one of the houses, the right to such mutual support is not thereby lost, the legal presumption being that the owner reserves to himself such right, and at the

(x) See Tutill v. W. Ham Local Bd.,
L. R. 8 C. P. 447, where this doctrine is
applied to posts and rails.

(y) Vowles v. Miller, 3 Taunt. 137.
(z) Voyce v. Voyce, Gow. 201.
(a) Anon., 2 Rolle, Rep. 255; Water-
man v. Soper, 1 Ld. Raym. 737.

(b) Cubitt v. Porter, 8 B. & C. 257;
Standard Bank of British S. America v.

Stokes, 9 Ch. D. 68; 47 L. J. Ch. 554. As to the meaning of the term "partywall," see Watson v. Gray, 14 Ch. D. 192; 49 L. J. Ch. 243.

(c) Weston v. Arnold, L. R. 8 Ch. 1084; 43 L. J. Ch. 123.

(d) Watson v. Gray, supra.
(e) Stedman v. Smith, 8 El. & Bl. 1.

same time grants to the new owner an equal right, and conse- Chap. IV. quently if the owner parts with several of the houses at different times, the possessors still enjoy the right to mutual support, and such right is wholly independent of the question of the priority of their titles (f).

In the metropolis the rights and duties of adjoining owners in respect to party walls are regulated by the Metropolitan Buildings Act, 1855, 18 & 19 Vict. c. 122 (g).

The plea of liberum tenementum or freehold which admits the possession of the plaintiff, but asserts a title to the freehold, and a right of possession in the defendant may be pleaded as a good defence to an action for trespass (h).

mentum.

"Where a breach of the peace," observes Parke, B., "is com- Justification of mitted by a freeholder, who in order to get possession of his land, trespass. assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public (i), Liberum tenein the shape of an indictment for forcible entry, he is not liable to the other party. It is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that the defendant entered upon it accordingly" (k). The rightful owner cannot in any case, when he has a right of entry, be made responsible in damages for a trespass upon his own land, for he is no trespasser if he has a right to go upon it; and where a mere intruder has been allowed to run up a hut on the owner's property, the owner may pull down the hut and remove the materials (1).

It has been held that a commoner may pull down a building wrongfully erected upon the common and which prevents his exercising his right as fully as he otherwise might, provided that he does no unnecessary damage (m), and there was no one living in the house at the time (n).

An entry upon the land of another may be justified on the Under legal

(f) Richards v. Rose, 9 Ex. 219. (g) See Standard Bank of British S. America v. Stokes, supra.

(h) Slocombe v. Lyall, 6 Ex. 119; 20 L. J. Ex. 96.

(i) See R. v. Oakley, 4 B. & A. 30; R. v. Wilson, 3 A. & E. 817.

(k) Per Parke, B., Harvey v. Bridges, 14 M. & W. 442; 1 Ex. 261; Minton v. Combes, 9 C. B. 787; 19 L. J. C. P. 336; see "Forcible Entry," ante, p.67.

(1) Davison v. Wilson, 11 Q. B. 890;

G

17 L. J. Q. B. 196; Burling v. Reed, 11
Q. B. 904.

(m) Davies v. Williams, 16 Q. B.
546; 20 L. J. Q. B. 330.

(n) Jones v. Jones, 1 H. & C. 1; 31 L. J. Ex. 506. As to exercise of right to demolish houses under the Metropolis Loc. Man. Acts, 18 & 19 Vict. c. 120, s. 76, and 25 & 26 Vict. c. 102, ss. 75, 106, see Cooper v. Wandsworth Bd., 32 L. J. C. P. 186; Brutton v. St. George's Vestry, L. R. 13 Eq. 339; 41 L. J. Ch. 134.

process.

Chap. IV. ground that the person making it was acting under legal process (o), but an entry made in pursuance of a warrant of a County Court authorising the high bailiff to give possession under the 19 & 20 Vict. c. 108, s. 57, is not justifiable (except in the case of the officers of the Court), unless the party obtaining it had a lawful right to its possession (p).

Leave and license.

A private person is justified in breaking and entering into a house without warrant, for the purpose of preventing a murder (q), or for arresting a felon (r), but in either instance he must show that he had reasonable grounds for so acting.

A trespass may be justified on the ground of the necessity of escaping from some imminent danger, or that it was committed through the plaintiff's default (t), or in consequence of the plaintiff's wrong-doing, as where he removed the defendant's goods and the defendant followed them on to the plaintiff's land for the purpose of retaking them (u).

A plea of leave and license is a defence to an action for trespass. The license proved may either be an express one or one implied by circumstances. Thus the keeping open of a house, in which there is a public billiard-table, is a license implied by circumstances to all persons to enter for the purpose of playing (x). So an express plea of license may be proved by showing a right of entry into the plaintiff's house under a provision in a lease that the defendant might enter for nonpayment of rent (y). An acquiescence of the plaintiff in the trespass upon an erroneous representation (to which the defendant was a party) of the legal obligation of the plaintiff to submit to it, will not support a plea of license (z). The license pleaded must be commensurate with and cover all the trespasses complained of, for if some are not covered by the license the plaintiff will be entitled to damages in respect of them (a).

A license includes, as incident to it, a power to do everything without which the act licensed cannot be done. Thus, if A.

(0) Crouther v. Ramsbottom, 7 T. R. 654.

(p) Hodson v. Walker, L. R. 7 Ex. 55; 41 L. J. Ex. 51.

(q) Hancock v. Baker, 2 B. & P. 260. (r) Smith v. Shirley, 3 C. B. 142, see also Webb v. Beavan, 6 M. & G. 1055.

(t) 2 Roll, Abr. "Trespass," 565, pl. 4.

483.

(u) Patrick v. Colerick, 3 M. & W. (x) Ditcham v. Bond, 3 Camp. 525. (y) Kavanagh v. Gudge, 7 M. & G. 316.

(z) Roper v. Harper, 4 Bing. N. C. 20.

(a) Adams v. Andrews, 15 Q. B. 284.

« ΠροηγούμενηΣυνέχεια »