Ii.—: Trespass.

What shall be said a trespass. Trespass may be committed by various kinds of acts, of which the most obvious are entry on another’s land (trespass quare clausum fregit), and taking another’s goods (trespass de bonis asportatis). Notwithstanding that trespasses punishable in the king’s court were said to be vi et armis, and were supposed to be punishable as a breach of the king’s peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. “Every invasion of private property, be it ever so minute, is a trespass”. There is no doubt that if one walks across a stubble field without lawful authority or the occupier’s leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor, a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner’s will thus expressed. But even so, persons using the land are no more than “bare licensees,” and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway, but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land, may be a trespass against that owner.

Quaere concerning balloons. It has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass “to interfere with the column of air superincumbent on the close,” and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour’s land. Fifty years later Lord Blackburn inclined to think differently, and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one’s land in a balloon; but this appears irrelevant to the pure legal theory. Trespasses clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man’s land: but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord Ellenborough’s dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of “innocent passage” for projectiles over the heads and lands of the Queen’s subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised.

Trespass by a man’s cattle is dealt with exactly like trespass by himself; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject.

Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be a nuisance.

Trespass to goods. Trespass to goods may be committed by taking possession of them, or by any other act “in itself immediately injurious” to the goods in respect of the possessor’s interest, as by killing, beating, or chasing animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being “merged in the felony” when the trespass is felonious has been considered in an earlier chapter. Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another’s chattel without either dispossession or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough. And cases are conceivable in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land.