X.—: Remedies.

Taking or retaking goods. The only peculiar remedy available for this class of wrongs is distress damage feasant, which, though an imperfect remedy, is so far a remedy that it suspends the right of action for the trespass. The distrainor “has an adequate satisfaction for his damage till he lose it without default in himself;” in which case he may still have his action. It does not seem that the retaking of goods taken by trespass extinguishes the true owner’s right of action, though it would of course affect the amount of damages.

Costs where damages nominal. Actions for merely trifling trespasses were formerly discouraged by statutes providing that when less than 40s. were recovered no more costs than damages should be allowed except on the judge’s certificate that the action was brought to try a right, or that the trespass was “wilful and malicious:” yet a trespass after notice not to trespass on the plaintiff’s lands was held to be “wilful and malicious,” and special communication of such notice to the defendant was not required. But these and many other statutes as to costs were superseded by the general provisions of the Judicature Acts, and the rule that a plaintiff recovering less than 10l. damages in an action “founded on tort” gets costs only on the County Court scale, unless by special certificate or order; and they are now expressly repealed.

The Court is therefore not bound by any fixed rule; but it might possibly refer to the old practice for the purpose of informing its discretion. It seems likely that the common practice of putting up notice boards with these or the like words: “Trespassers will be prosecuted according to law”—words which are “if strictly construed, a wooden falsehood”, simple trespass not being punishable in courts of criminal jurisdiction—was originally intended to secure the benefit of these same statutes in the matter of costs. At this day it may be a question whether the Court would not be disposed to regard the threat of an impossible criminal prosecution as a fraud upon the public, and rather a cause for depriving the occupier of costs than for awarding them. Several better and safer forms of notice are available; a common American one, “no trespassing,” is as good as any.

“Nothing on earth,” said Sir Walter Scott, “would induce me to put up boards threatening prosecution, or cautioning one’s fellow-creatures to beware of man-traps and spring-guns. I hold that all such things are not only in the highest degree offensive and hurtful to the feelings of people whom it is every way important to conciliate, but that they are also quite inefficient”. It must be remembered that Scott never ceased to be a lawyer as well as a man of letters. It was partly the legal knowledge and tastes displayed in the Waverley Novels that identified him in the eyes of the best critics as the author.

Injunctions. An injunction can be granted to restrain a continuing trespass, such as the laying and keeping of waterpipes under a man’s ground without either his consent or justification by authority of law; and the plaintiff need not prove substantial damage to entitle himself to this form of relief. On the other hand the right to an injunction does not extend beyond the old common-law right to sue for damages: a reversioner cannot have an injunction without showing permanent injury to the reversion.

Of course it may be a substantial injury, though without any direct damage, to do acts on another man’s land for one’s own profit without his leave; for he is entitled to make one pay for the right to do them, and his power of withholding leave is worth to him precisely what it is worth to the other party to have it.

Effect of changes in procedure. Before the Common Law Procedure Acts an owner, tenant, or reversioner who had suffered undoubted injury might be defeated by bringing his action in the wrong form, as where he brought trespass and failed to show that he was in present possession at the time of the wrong done. But such cases can hardly occur now.