76

Railway Co., Spade v. Lynn & Boston R. Co., and Victorian Railway Commissioners v. Coultas," the court says: "Naturally one is diffident of one's opinion when one finds that it is not in accord with those which have been expressed by such judicial authorities as those to which I have just referred. But certainly, if, as is admitted, and I think justly admitted, by the Massachusetts judgment, a claim for damages for physical injuries naturally and directly resulting from nervous shock which is due to the negligence of another in causing fear of immediate bodily hurt is in principle not too remote to be recoverable in law, I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of claims. My experience gives me no reason to suppose that a jury would really have more difficulty in weighing the medical evidence as to the effects of nervous shock through fright, than in weighing the like evidence as to the effects of nervous shock through a railway collision or a carriage accident, where, as often happens, no palpable injury, or very slight palpable injury, has been occasioned at the time."78

75 151 N. Y. 107, 45 N. E. 354, LEADING ILLUSTRATIVE CASES.

76 168 Mass. 285, 47 N. E. 88.

77 13 App. Cas. 222 (Eng.).

78 Dulieu v. White & Sons, (1901) 2 K. B. 669 (Eng.).

CHAPTER III.

TRESPASS TO PROPERTY.

9980

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16. Trespass to real property.-"Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close. For every man's land is, in the eye of the law, enclosed and set apart from his neighbor's and that either by a material and visible fence, as one field is divided from another by a hedge, or by an ideal, invisible boundary, existing only in the contemplation of the law."79 "No man may set his foot upon my ground without my license, but he is liable to an action. Every invasion of private property, be it ever so minute, is a trespass. And property, in connection with the law of trespass, as in many other places in law, means no more than possession or a right of possession. Trespass may consequently be defined as an unjustifiable intrusion upon a person's possession.81 Neither the use of force, nor the breaking through or passage over a visible boundary, nor any unlawful intention, provided the act be voluntary, is necessary to constitute a trespass for which at least nominal damages may be recovered. For instance, where there is no obvious boundary between the plaintiff's and defendant's fields, and the defendant in mowing his own grass inadvertently mows some of the plaintiff's, he is liable for a tres79 3 Blackstone, Commentaries, p. 209.

80 Entick v. Carrington, 19 How. St. Tr. 1067 (Eng.).

81 Clerk & Lindsell, Torts (6th ed.), p. 347.

pass. 82 It is clearly unnecessary that any real damage be done to support an action of trespass,83 the trifling nature of the act being no defense, and, as it is said, the maxim, de minimis non curat lex (the law concerns not itself about trifles), has no application to the law of trespass.84 "It is the entry that constitutes the trespass." But where a man is forced or thrown upon the land of another, he is not a trespasser, not having gone there voluntarily.85

17. Same subject-The superjacent space.—It is the theory of the law that the landowner owns above and below the surface.86 But it is an undetermined question whether the principle means that the ownership of the land carries with it the possession of the column of air above, or merely that the landowner is entitled to complain of the occupation of the space above him which materially interferes with his enjoyment of his land. Lord Ellenborough, in 1815, raised the question whether passing over a man's land in a balloon would be a trespass. He then expressed the opinion that it was not in itself a trespass "to interfere with the column of air superincumbent on the close," although he held that a man was a trespasser who fired a gun on his own. land so that the shot fell on his neighbor's land.87

82 Basely v. Clarkson, 3 Lev. 37 (Eng.), LEADING ILLUSTRATIVE CASES. 83 Sefton v. Prentice, 103 Cal. 670, 37 Pac. 641; Pfeiffer v. Grossman, 15 Ill. 53, LEADING ILLUSTRATIVE CASES.

84 Yelloly v. Morley, 27 T. L. R. 20 (Eng.).

85 Dougherty v. Stepp, 18 N. C. 371; Smith v. Stone, Styles 65 (Eng.), LEADING ILLUSTRATIVE CASES.

86 This theory is expressed by the maxim, Cujus est solum, ejus est usque ad coelum et ad inferos (he who owns the ground possesses also to the sky and to the center of the earth.)

87 Pickering v. Rudd, 4 Camp. 219 (Eng.).

Lord Blackburn later expressed the opinion that the balloonist would be a technical trespasser." 88 Erecting a building so that the eaves overhang another's land has been held to be a trespass.89 And ejectment has been allowed against a company that had strung a telephone wire over the plaintiff's land."

In a case in which it was held that the owner of a stallion was liable for damage done by the horse kicking and biting the plaintiff's mare through a wire fence which separated the plaintiff's and defendant's closes, Lord Coleridge said: "It seems to me sufficiently clear that some portion of the horse's body must have been over the boundary. That may be a very small trespass, but it is a trespass in law."91 It may be doubted whether this case was not decided rather on the theory of the common law duty of the owner of cattle to keep them in than on the theory of trespass. It has, however, also been held that in a quarrel between two neighbors, where one of them reached her arm across the fence, she was guilty of a trespass. "The mere fact that plaintiff did not step across the boundary line does not make her any less a trespasser if she reached her arm across the line, as she admits she did." 92

18. Trespass to personal property.-Trespass to personal property arises when there is an interference with the interest of the possessor thereof, as by

88 Kenyon v. Hart, 6 B. & S. 249 (Eng.).

89 Smith v. Smith, 110 Mass. 302, LEADING ILLUSTRATIVE CASES.

90 Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716, LEADING ILLUSTRATIVE CASES.

91 Ellis v. Loftus Iron Co., L. R. 10 C. P. 10 (Eng.).

92 Hannabalson v. Sessions, 116 Iowa 457, 90 N. W. 93, LEADING ILLUSTRATIVE CASES.

93

killing, beating, or chasing animals. To maintain trespass to goods it is only necessary that the plaintiff have possession or the right of possession. Where the act complained of constituted a change of possession it is technically called an asportation, and the writ in the common law form of pleading for trespass to chattels was for a trespass de bonis asportatis (goods carried away). This writ was maintainable where the defendant exercised any authority over the goods against the will and to the exclusion of the owner or possessor by an unlawful intermeddling, although there was no manual taking or removal.94 Such an action may be brought against a sheriff for an illegal levy or attachment on personal property.95 The degree of force used in a dispossession is immaterial. If a horse is hitched where the owner had a right to fasten him, it is a trespass on the part of another to unhitch the horse and remove him to another post.96 Trespass may be committed by frightening a horse so that he runs away and does damage to himself or to the harness and carriage."7

19. Same subject Question of nominal damages. -It may perhaps be regarded as an unsettled question whether merely laying hands on another's chattel without damaging it or making a dispossession constitutes a trespass. Very slight damage, such as scratching the panel of a carriage, has been said to

93 Cook v. Thornton, 109 Ala. 523, 20 So. 14.

94 Wintringham v. Lafoy, 7 Cowen 735 (N. Y.), LEADING ILLUSTRATIVE CASES.

95 Miller v. Baker, 1 Met. 27 (Mass.), LEADING ILLUSTRATIVE CASES. 96 Bruch v. Carter, 32 N. J. Law 554.

97 Cole v. Fisher, 11 Mass. 137.