measured by the kind of premises, the purpose of the entry and the general custom of the community.

§ 217. Express license by the owner.-A mere license exists wherever the owner grants to another a right to enter, without giving him an interest in the land. Such a license is personal to the licensee and it is subject to revocation by the landowner at any time before it is acted on. But when acted on by the licensee, it is irrevocable to the extent it has been acted on, though it may be revoked as to the part not acted on. If the license is "coupled with an interest," as it is called, it can not be revoked. For instance, if a landowner sell cattle on his land, giving the right to the owner to leave them for a certain time, visit them daily and take them away, the landowner can not revoke the license.

§ 218. Effect of statute of frauds.-The rule that a license acted upon becomes irrevocable has been carried to the extent of practically overriding the statute of frauds in one respect. The statute of frauds provides that no conveyance of land or any interest therein shall be enforcible unless in writing. Nevertheless, it often happens that men will grant to each other licenses by parol to enjoy interests in each other's lands, and in face of the prohibition of the statute, will act upon them. This is especially noticeable in the matter of parol licenses to overflow land for mill purposes. By acting on this license, the licensee acquires an interest in the overflowed land, which the statute says is unenforcible because granted verbally. Yet the injustice of allowing the landowner to revoke his license, after the licensee has incurred great expense on its faith, is so glaring that courts of equity will enjoin the revocation.

§ 219. License by law. This sort of license is of an entirely different nature from those that have been considered. It arises not out of the consent of the owner, either express or implied, but often exists contrary to the intent of the owner. It rests upon motives of public policy and the general welfare of the community.

For example, in time of conflagration or other public calamity, officers and even private persons are justified in entering on any premises or into any building necessary or reasonably convenient to check the disaster; and they may do any damage that is reasonably necessary even to the extent of a total destruction.

If for any reason a public highway becomes impassable a traveler has a license by law to pass around the obstruction by going over the adjacent land, and for that purpose may remove a fence.

But

§ 220. Legal process.-Officers charged with the execution of legal process have a license by law to enter upon land when necessary to do so. Ordinarily the license extends only to the land and not to the dwellinghouse, which is regarded as the castle of the owner. in case of felony or breach of the peace the officer may also enter the house, and if need be break open the door to effect an entrance. So, also, if the command of the writ necessarily involves entering the house, as in the case of search warrants or writs for possession, the officer is entitled to enter forcibly.

§ 221. Condemnation proceedings.—Similar to entry under legal process is the entry for purposes of condemnation. Where the statute provides that an owner's land may be taken for certain public purposes, upon compensation being made, the procedure must be strictly

followed, and any violation or excess may be deemed a trespass. Such statutes usually provide for a preliminary survey of the ground by the parties contemplating the condemnation proceedings, and for the purpose of making such surveys an entry may be made without incurring the liability for trespass.

§ 222. Effect of exceeding the license.-The nature and extent of the license being ascertained, the licensee is bound to confine himself within its limits. If he goes beyond he loses all protection and is regarded as a trespasser from the beginning.

§ 223. Injuries by animals.-The subject of injury by animals is in some respects peculiar, partaking as it does of the nature both of nuisance and negligence. In this place, injuries caused by the voluntary act or purpose of the owner of the animals will not be considered, for such injuries would usually be deemed an assault and battery by the owner himself.

In considering the law, a distinction must be kept in mind from the outset between acts that are a trespass on land and acts that are not.

§ 224. Trespass upon land by animals.-Every unwarrantable entry by one's animals upon the land of another is a trespass, whether the land be enclosed or not. If any part of the animal cross the line the trespass is complete.

§ 225. Duty of owner at common law.-At comman law every owner of animals was bound at his peril to keep his animals from straying upon another's land. The duty was absolute, and was not discharged by the

exercise of the highest degree of care. Hence, no question of negligence was involved. The absolute obligation attached, however, only as to such animals as, from their nature, were capable of damaging land or crops. And an exception was made in favor of the owners driving cattle along a highway, and in such cases the liability was not absolute, but the owner was relieved if he exercised ordinary care to prevent the trespass.

$226. The law in the United States. The common-law rule of absolute liability for injuries done by trespassing animals is generally in force in the United States. In some the wrong is not treated as negligence; in others it is called negligence, but the negligence is conclusively presumed from the fact of trespass. Statutes and judicial decisions in some states have modified the English rule to some extent.

§ 227. Remedies. In addition to the usual remedy by an action for damages, the landowner was entitled to take possession of the trespassing animal and keep it until the damage was paid. Or he could drive the animal from his premises to the highway, using no more force than needful. For any excess he would in turn become liable himself.

§ 228. Animals not trespassing.-It was formerly held at common law that the owner of a wild beast, or a domestic animal known to be dangerous, was bound at his peril to keep it confined, and that it would be no defense that the owner exercised care to prevent injury. The dangerous animal was deemed a nuisance and the keeping it was an unlawful act.

The present rule is that for injuries done by an animal, other than by trespass, the owner is not absolutely liable, but liable only for a failure to use ordinary