property. Generally speaking, actual possession is sufficient to entitle a party to maintain trespass against a wrong-doer, that is established by a great variety of cases; Chambers v. Donaldson and others a, is a very strong authority upon this point. The court there decided, that though the plaintiff had a wrongful possession as against the person in whom the freehold was, yet that such possession was sufficient to enable him to maintain trespass against a wrong-doer, and that unless the defendant acted under the authority of the person in whom the soil and freehold was alleged to be, he could not justify committing a trespass against any person in the actual possession of the law."b

A person who has exclusive possession of land, even though Exclusive it may be for a temporary or limited purpose, may maintain possession. trespass; as where a person contracted with the owner of a close for the purchase of a growing crop of grass; it was held, that he might maintain trespass quare clausum fregit, against any person entering the close and taking the grass, even with the assent of the owner of the land. So one who has only the herbage of a forest or close may bring trespass as well as he who has the land d. So may a person who has an exclusive right of digging turves. So where A. let a dairy of cows to B., and agreed that they should be fed in a certain close, in which no other cattle were to be fed; it was held, that B. might maintain trespass against or distrain the cattle of A. damage feasant there; for he had the sole and exclusive right to the occupation of the close. A person legally entitled to land having entered, may maintain trespass against a person wrongfully in possession at the time of the entry, and continuing in

An easement is not

maintain trespass.

such possession afterwards. The purchaser of a growing crop of grass, sold under a distress, who has nailed up the gates, and made the grass into hay, may maintain trespass against the sheriff for the acts of his bailiff in entering and levying under a fi. fa. b

But where a full grown crop of potatoes was purchased sufficient to while in the ground, to be taken away immediately; it was held, that the purchaser had not such an interest in the soil as would entitle him to maintain trespass quare clausum fregit, for he had only an easement, a right to come on the land, for the purpose of carrying away the potatoes. A copyholder who holds under a special custom of the manor, a tenant for life, or a tenant for years, may maintain trespass against the lord of the manor for cutting down so many trees as will deprive them of the right of estovers, &c. A tenant for years or at will, or at sufferance, may maintain trespass against a stranger, or even against his landlord, unless a right of entry be reserved, or unless the landlord have a right of entry by law; as where the tenancy has expired and the tenant become a trespasser. If trees be not excepted in a lease for life or years, and the lessor fells them, the lessee may maintain trespass against him for the loss of his interest in the trees, and also for the entry into the land. But where the trees are excepted in the lease, the lessee has no manner of interest in them, and the lessor may have trespass against him if he either fells or damages them f.

What is sufficient

Where proprietors of a canal erected a dam of wood and possession. earth upon a close, with the permission of the owner, for the purpose of completing their work; it was held, that they had a sufficient possession to maintain trespass against a wrong

doer.

But commissioners of sewers under 23 Hen. VIII. c. 5. have not such possession or interest in their works, as to entitle them to maintain trespass for any injury done thereto, for they have no property in the soil, but merely an authority to do certain acts on behalf of the public b; nor have the proprietors of a navigation river, made under 16 and 17 Car. II., such property in the soil of the bed of the river, or in the soil of a bank formed of the earth excavated from the channel of the river, as to enable them to maintain trespass for the injury done to such bank, for they have but a mere easement. Where the plaintiff had conveyed a chapel built by him to a third person, who took possession thereof, and left the key with the gardener, with permission to allow the plaintiff to preach in the chapel; it was held, that the plaintiff had not such exclusive possession as to enable him to maintain trespass against a wrong-doerd. Nor will trespass lie for entering into a pew, or seat in a church, as the plaintiff has not the exclusive possession, the possession of the church being in the parson .

But the perpetual curate of a chapelry may maintain trespass, even against a churchwarden, for pulling down a pew. And it seems, that the owner may maintain trespass for breaking a pew ; and so may the parson, against a person for preaching in the church without his leave h. And though the freehold of the church is in the parson, a person who erects a tombstone in the church-yard, may maintain trespass against a party who wrongfully removes it i.

tiff must have actual

The gist of this action is possession; it is therefore a The plaingeneral rule, that unless the plaintiff be in actual or constructive possession at the time of the injury being com- or con

structive possession.

mitted, he cannot maintain trespass; a parson, before induction, cannot maintain trespassa. But after induction he may maintain trespass for an injury to the glebe lands, though he has not taken actual possession of them, for the induction puts him in possession of a part for the whole b. An heir, before entry, has only a seisin in law, and cannot maintain trespass c. Nor a devisee, nor a lessee for years, before entry. But on the determination of a lease at will, by the death of the lessee, the lessor may maintain trespass before entry; for the law casts the possession on him by the death of the tenant at will. So if a lessee at will commits voluntary waste, the lessor may immediately maintain trespass against him, for the committing waste amounts to a determination of the will 8.

A disseisee may maintain trespass against the disseisor for the disseisin itself, because he was then in possession; but not for an injury after the disseisin; until he has re-entered, after which he may maintain trespass against the disseisor, or a stranger, for any injury done to the property after the disseisin; for after his re-entry, the law supposes the possession to have all along continued in him'. Where there is no actual possession in another, possession follows the property. It is not necessary that there should be a manual occupation every day *. Thus the lord may bring trespass for injuries done to the waste of the manor, of which no one is in the actual enjoyment1; or against a commoner who enters for the purpose of chasing conies there m. So the owner of the soil of a public way may maintain trespass for an injury to the soil ". So may the owner of a market, against any person who makes use of it, beyond those

privileges which the public possess, without the license of the owner; as by unlawfully placing a stall there. In copyhold lands, though the property in the mines be in the lord, the possession of them is in the tenant, who may maintain trespass for entering the subsoil and taking coal, though no injury be done to the surface b.

"The property in trees is in the lord, yet the possession of them is in the tenant; and the latter may maintain trespass even against the lord for cutting the trees." The owner of a free warren may maintain trespass for entering and sporting therein d. But a person having a mere incorporeal right, as a common of pasture, turbary, &c., cannot support this action for treading down the grass growing upon the land, upon which he has such right of common; for though a commoner has a right to take such grass by the mouths of his commonable cattle, he is not to be considered as in possession of the lande.

2. What acts constitute trespass to real property.] Trespass can only be supported when the injury was committed with force, actual or implied, and immediate. It will lie not only against the party who did the act, but against all who direct or assist in the commission of it. A master is liable in trespass What acts of a servant for any act done by his servant, in the course of executing his will render orders, with ordinary care. As where a master ordered his the master servant to lay down a quantity of rubbish near his neighbour's trespass. wall, but so that it might not touch the same, and the servant used ordinary care in executing the orders of his master, but some of the rubbish naturally ran against the wall; it was held, that the master was liable in trespass f. Where a servant does work by order of his master, and the latter imposes a restric

liable in