Ix.—: Grounds of Justification and Excuse.

Licence. Acts of interference with land or goods may be justified by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it.

“A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which without licence had been unlawful. But a licence to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down they are grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of eating, firing my wood and warming him, they are licences: but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property”.

Revocation of licence: distinction when coupled with interest. Generally speaking, a licence is a mere voluntary suspension of the licensor’s right to treat certain acts as wrongful, comes to an end by any transfer of the property with respect to which the licence is given, and is revoked by signifying to the licensee that it is no longer the licensor’s will to allow the acts permitted by the licence. The revocation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an entertainment or the like, it may be a breach of contract to require a person who has duly paid his money and entered to go out, but a person so required has no title to stay, and if he persists in staying he is a trespasser. His only right is to sue on the contract: when, indeed, he may get an injunction, and so be indirectly restored to the enjoyment of the licence. But if a licence is part of a transaction whereby a lawful interest in some property, besides that which is the immediate subject of the licence, is conferred on the licensee, and the licence is necessary to his enjoyment of that interest, the licence is said to be “coupled with an interest” and cannot be revoked until its purpose is fulfilled: nay more, where the grant obviously cannot be enjoyed without an incidental licence, the law will annex the necessary licence to the grant. “A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident”. Thus the sale of a standing crop or of growing trees imports a licence to the buyer to enter on the land so far and so often as reasonably necessary for cutting and carrying off the crop or the trees, and the licence cannot be revoked until the agreed time, if any, or otherwise a reasonable time for that purpose has elapsed. The diversity to be noted between licence and grant is of respectable antiquity. In 1460 the defendant in an action of trespass set up a right of common; the plaintiff said an excessive number of beasts were put in; the defendant said this was by licence of the plaintiff; to which the plaintiff said the licence was revoked before the trespass complained of; Billing, then king’s serjeant, afterwards Chief Justice of the King’s Bench under Edward IV., argued that a licence may be revoked at will even if expressed to be for a term, and this seems to have so much impressed the Court that the defendant, rather than take the risk of demurring, alleged a grant: the reporter’s note shows that he thought the point new and interesting. But a licensee who has entered or placed goods on land under a revocable licence is entitled to have notice of revocation and a reasonable time to quit or remove his goods.

Executed licences. Again, if the acts licensed be such as have permanent results, as in altering the condition of land belonging to the licensee in a manner which, but for the licence, would be a nuisance to adjacent land of the licensor; there the licensor cannot, by merely revoking the licence, cast upon the licensee the burden of restoring the former state of things. A licence is in its nature revocable, but the revocation will not make it a trespass to leave things as the execution of the licence has made them. In this sense it is said that “a licence executed is not countermandable”. When a licence to do a particular thing once for all has been executed, there is nothing left to revoke.

Whether and how far the licensor can get rid of the consequences if he mislikes them afterwards is another and distinct inquiry, which can be dealt with only by considering what those consequences are. He may doubtless get rid of them at his own charges if he lawfully can; but he cannot call on the licensee to take any active steps unless under some right expressly created or reserved.

For this purpose, therefore, there is a material difference between “a licence to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like,” which may be countermanded without putting the licensee in any worse position than before the licence was granted, and “a licence to construct a work which is attended with expense to the party using the licence, so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss”. And this rule is as binding on a licensor’s successors in title as on himself. But it is not applicable (in this country at any rate) to the extent of creating in or over land of the licensor an easement or other interest capable of being created only by deed.

In those cases, however, the licensee is not necessarily without remedy, for the facts may be such as to confer on him an interest which can be made good by way of equitable estoppel. This form of remedy has been extensively applied in the United States to meet the hardship caused by untimely revocation of parol licences to erect dams, divert water-courses, and the like.

The case of a contract to grant an easement or other interest in land must be carefully distinguished when it occurs.

Expression of licensor’s will. The grant or revocation of a licence may be either by express words or by any act sufficiently signifying the licensor’s will: if a man has leave and licence to pass through a certain gate, the licence is as effectually revoked by locking the gate as by a formal notice. In the common intercourse of life between friends and neighbours tacit licences are constantly given and acted on.

Distinction from grant as regards strangers. We shall have something to say in another connexion of the rights—or rather want of rights—of a “bare licensee.” Here we may add that a licence, being only a personal right—or rather a waiver of the licensor’s rights—is not assignable, and confers no right against any third person. If a so-called licence does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a licence, namely the grant of an interest or easement. And the question of grant or licence may further depend on the question whether the specified mode of use or enjoyment is known to the law as a substantive right or interest: a question that may be difficult. But it is submitted that on principle the distinction is clear. I call at a friend’s house; a contractor who is doing some work on adjacent land has encumbered my friend’s drive with rubbish; can it be said that this is a wrong to me without special damage? With such damage, indeed, it is, but only because a stranger cannot justify that which the occupier himself could not have justified. The licence is material only as showing that I was not a wrong-doer myself; the complaint is founded on actual and specific injury, not on a quasi trespass. Our law of trespass is not so eminently reasonable that one need be anxious to extend to licensees the very large rights which it gives to owners and occupiers.

Justification by law. As to justification by authority of the law, this is of two kinds:

1. In favour of a true owner against a wrongful possessor; under this head come re-entry on land and retaking of goods.

2. In favour of a paramount right conferred by law against the rightful possessor; which may be in the execution of legal process, in the assertion or defence of private right, or in some cases by reason of necessity.

Re-entry: herein of forcible entry. A person entitled to the possession of lands or tenements does no wrong to the person wrongfully in possession by entering upon him; and it is said that by the old common law he might have entered by force. But forcible entry is an offence under the statute of 5 Ric. II. (ad 1381), which provided that “none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy [the true reading of the Parliament Roll appears to be ‘lisible, aisee, & peisible’] manner.” This statute is still in force here, and “has been re-enacted in the several American States, or recognized as a part of the common law”. The offence is equally committed whether the person who enters by force is entitled to possession or not: but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entry which is on the face of it wrongful, and could be justified only by a lawful possession; and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be “definite and appreciable”, by the rightful owner. A., being entitled to immediate possession (say as a mortgagee having the legal estate) effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier; thus, “in a very rough and uncourteous way,” that is, peaceably but only just peaceably, he gets possession: once gotten, however, his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided. Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B.. Moreover, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entry, though the actual ingress were without violence. “He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth violence, and throweth out such as he findeth in the place, he (I say) shall not be excused: because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house”. And under the old statutes and practice, “if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful: and (notwithstanding the same restitution is made) yet B. may well have an assize against A., or may enter peaceably upon him again”.

But old authorities also distinctly say that no action is given by the statute to a tenant who is put out with force by the person really entitled, “because that that entry is not any disseisin of him”. There is nothing in them to countenance the notion of the personal expulsion being a distinct wrong. The opinion of Parke and Alderson was in accordance with this, and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction—certainly not made by the majority—of collateral wrongs from the forcible eviction itself. The correct view seems to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but he shall be punished for the breach of the peace by losing it, besides making a fine to the king. If the latest decisions are correct, the dispossessed intruder might nevertheless have had a civil remedy in some form (by special action on the case, it would seem) for incidental injuries to person or goods, provided that they were incidental to the unlawful force and not to the entry in itself. This refinement does not appear to have occurred to any of the old pleaders.

Fresh reentry on trespasser. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. His condition is quite different from that of a rightful owner out of possession, who can recover legal possession by any kind of effective interruption of the intruder’s actual and exclusive control. A person who had been dismissed from the office of schoolmaster and had given up possession of a room occupied by him in virtue of his office, but had afterwards re-entered and occupied for eleven days, was held not entitled to sue in trespass for an expulsion by the trustees at the end of that time. “A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in his former possession”. There must be not only occupation, but effective occupation, for the acquisition of possessory rights. “In determining whether a sufficient possession was taken, much more unequivocal acts must be proved when the person who is said to have taken possession is a mere wrong-doer than when he has a right under his contract to take possession”. And unless and until possession has been acquired, the very continuance of the state of things which constitutes the trespass is a new trespass at every moment. We shall see that this has material consequences as regards the determination of a cause of excuse.

Recaption of goods. As regards goods which have been wrongfully taken, the taker is a trespasser all the time that his wrongful possession continues, so much so that “the removal of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place”, and a supervening animus furandi at any moment of the continuing trespassory possession will complete the offence of larceny and make the trespasser a thief. Accordingly the true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and, as there is nothing in this case answering to the statutes of forcible entry, he may use (it is said) whatever force is reasonably necessary for the recaption. He may also enter on the first taker’s land for the purpose of recapture if the taker has put the goods there; for they came there by the occupier’s own wrong; but he cannot enter on a third person’s land unless, it is said, the original taking was felonious, or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them. Possession is much more easily changed in the case of goods than in the case of land; a transitory and almost instantaneous control has often, in criminal courts, been held to amount to asportation. The difference may have been sharpened by the rules of criminal justice, but in a general way it lies rather in the nature of the facts than in any arbitrary divergence of legal principles in dealing with immoveable and moveable property.

Process of law: breaking doors. One of the most important heads of justification under a paramount right is the execution of legal process. The mere taking and dealing with that which the law commands to be so taken and dealt with, be it the possession of land or goods, or both possession and property of goods, is of course no wrong; and in particular if possession of a house cannot be delivered in obedience to a writ without breaking the house open, broken it must be. It is equally settled on the other hand that “the sheriff must at his peril seize the goods of the party against whom the writ issues,” and not any other goods which are wrongly supposed to be his; even unavoidable mistake is no excuse. More special rules have been laid down as to the extent to which private property which is not itself the immediate object of the process may be invaded in executing the command of the law. The broad distinction is that outer doors may not be broken in execution of process at the suit of a private person; but at the suit of the Crown, or in execution of process for contempt of a House of Parliament, or of a Superior Court, they may, and must; and this, in the latter case, though the contempt consist in disobedience to an order made in a private suit. The authorities referred to will guide the reader, if desired, to further details.

Constables, revenue officers, and other public servants, and in some cases private persons, are authorized by divers statutes to enter on lands and into houses for divers purposes, with a view to the discovery or prevention of crime, or of frauds upon the public revenue. We shall not attempt to collect these provisions.

Distress. The right of distress, where it exists, justifies the taking of goods from the true owner: it seems that the distrainor, unlike a sheriff taking goods in execution, does not acquire possession, the goods being “in the custody of the law”. Most of the practical importance of the subject is in connexion with the law of landlord and tenant, and we shall not enter here on the learning of distress for rent and other charges on land.

Damage feasant. Distress damage feasant is the taking by an occupier of land of chattels (commonly but not necessarily animals) found encumbering or doing damage on the land, either to the land itself or to chattels on the land. The right given by the law is therefore a right of self-protection against the continuance of a trespass already commenced. It must be a manifest trespass; distress damage feasant is not allowed against a party having any colour of right, e.g., one commoner cannot distrain upon another commoner for surcharging. And where a man is lawfully driving cattle along a highway, and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction. And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice. In one respect distress damage feasant is more favoured than distress for rent. “For a rent or service the lord cannot distreine in the night, but in the day time: and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them”. But in other respects “damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act,” and held only as a pledge for its own individual trespass, and other requirements observed. Distress damage feasant suspends the right of action for the trespass.

The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one’s election, or to remove inanimate chattels and replace them on the owner’s land.

Entry of distrainor. Entry to take a distress must be peaceable and without breaking in; it is not lawful to open a window, though not fastened, and enter thereby. Distrainors for rent have been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting.

In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifications: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof.

Trespasses justified by necessity. Finally there are cases in which entry on land without consent is excused by the necessity of self-preservation, or the defence of the realm, or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse. Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff’s barn to save it: to which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or “by reason of a condition in law”; neither of which grounds is present here; taking for the true owner’s benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably), and entering in war time to make fortifications. “The defendant’s intention,” said Rede C. J., “is material in felony but not in trespass; and here it is not enough that he acted for the plaintiff’s good.” A stranger’s beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. “So where my beasts are doing damage in another man’s land, I may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another man drive my horses into a stranger’s land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger’s wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good”. Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land.

Foxhunting not privileged. At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist. Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit.

Trespass ab initio. There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor. But “when entry, authority, or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio,” that is, the authority or justification is not only determined, but treated as if it had never existed. “The law gives authority to enter into a common inn or tavern; so to the lord to distrain; to the owner of the ground to distrain damage feasant; to him in reversion to see if waste be done; to the commoner to enter upon the land to see his cattle; and such like . . . . But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent, or the owner for damage feasant, works or kills the distress; or if he who enters to see waste breaks the house or stays there all night; or if the commoner cuts down a tree; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio”. Or to state it less artificially, the effect of an authority given by law without the owner’s consent is to protect the person exercising that authority from being dealt with as a trespasser so long—but so long only—as the authority is not abused. He is never doing a fully lawful act: he is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority: “it shall be adjudged against the peace”. This doctrine has been applied in modern times to the lord of a manor taking an estray, and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time. It is applicable only when there has been some kind of active wrong-doing; not when there has been a mere refusal to do something one ought to do—as to pay for one’s drink at an inn or deliver up a distress upon a proper tender of the rent due. “If I distrain for rent, and afterwards the termor offers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress; but if I kill them or work them in my own plow, he shall have an action of trespass”. But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act: hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor’s goods, and of a distrainor; the latter only takes the goods into “the custody of the law,” and “the goods being in the custody of the law, the distrainor is under no legal obligation actively to re-deliver them”. Formerly these refinements were important as determining the proper form of action. Under the Judicature Acts they seem to be obsolete for most purposes of civil liability, though it is still possible that a question of the measure of damages may involve the point of trespass ab initio. Thus in the case of the distrainor refusing to give up the goods, there was no doubt that trover or detinue would lie: so that under the present practice there would be nothing to discuss.