cally known as a trespass. A trespass to property consists in the unlawful disturbance by force of another's possession. Therefore, that is not a trespass which consists merely in some wrong done to property by one to whom, for any purpose, the possession has been transferred by the owner, and who at the time of the wrong was lawfully holding it. But a possession obtained by fraud and for the very purpose of the wrong, is not a lawful possession, and an injury by force, while it continues, must be deemed a trespass on the possession of the owner.' The possession disturbed by a trespass may be either, 1, that of a general owner of the property; or, 2, that of one having a special property therein as mortgagee, bailee, or officer; or, *3, that of a mere possessor, by which is meant [*437] one who has a peaceable possession, but who shows in himself no other right. This mere possession is sufficient as against one who disturbs it without right in himself, and who, therefore, occupies the position of an intermeddler in that in which he has no interest. Thus, though an heir as such is not entitled to the possession of the personalty of his ancestor, yet if he have actual possession, he may sue in respect thereof any intruder. So an agister of cattle, though having no lien, may maintain trespass against a stranger for taking them away; and so may one who is simply intrusted with goods for safe keeping without compen 1 Furlong . Bartlett, 21 Pick. 401; Bradley v. Davis, 14 Me. 44; Henderson v. Marx, 57 Ala. 169. If a land owner allows logs of another to be put on his land upon agreement that they shall be removed by a certain time, and such logs are, after reasonable notice, not so removed, he may remove them himself without being a trespasser as to the log owner. Knapp . Hortung, 103 Penn. St. 400. But if one puts chattels on another's land without his consent, the latter is liable in trespass if he ships them to a distant place instead of removing them to some reasonable spot. Rich . Johnson, 61 Ind. 246. 2 Butler v. Collins, 12 Cal. 457. Brownell . Manchester, 1 Pick. 232; Casher v. Peterson, 4 N. J. 317; 5 Browning. Skillman, 24 N. J. 351; Hyde v. Stone, 7 Wend. 354; Basso. Pierce, 16 Barb. 595. sation.' Says SAVAGE, Ch. J.: "It would be monstrously inconvenient if a wrong-doer could come and take things out of the possession of him who had the possession under the rightful owner. Though a mere servant has not such a special property as will enable him to maintain trover, yet a bailee or trustee, or any other person who is responsible to his principal, may maintain the action, and the lawful possession of the goods is prima facie evidence of property." But possession may be either actual or constructive. The right to the possession of chattels draws to it, in contemplation of law, the possession itself, so that one party may sometimes be entitled to sue on his actual possession, while another may sue on his constructive possession. Thus, though a bailee or a mortgagor of chattels who is left in possession thereof may bring trespass against one who disturbs. his possession, still if the mortgagee or bailee is of right entitled to demand and take possession at any time, this right draws to it the possession, and the wrong-doer is a trespasser upon him also. So, if one cut wood on the land of another, he [*438] has, as to *all third persons, the possession of the wood cut, and may bring suits as possessor against intermeddlers; but if he has cut without right, the wood belongs to the owner of the land, and is deemed to be in his possession. So the finder of a chattel has rightful possession of what he finds, except as against the owner; but the latter has constructive possession, and if the finder intentionally or carelessly abuses or injures it, he becomes himself a trespasser, and cannot, in a suit by the owner, justify even the original taking." A trespass may be intentional or unintentional. A mere 'Faulkner . Brown, 13 Wend. 63; Cowing v. Snow, 11 Mass. 415. 2 Citing Sutton v. Buck, 2 Taunt. 309, per CHAMBRE, Justice. 3 Faulkner v. Brown, 13 Wend. 63, 64, citing cases. That a servant cannot bring trespass on the possession he holds for his master is held in Tuthill . Wheeler, 6 Barb. 362. 4 White v. Brantley,37 Ala. 430; Overby v. McGee, 15 Ark. 459; Staples v. Smith, 48 Me. 470; Strong v. Adams, 30 Vt. 221; White v. Webb. 15 Conn. 302. 5 Ward . Andrews, 2 Chit. 636; Bulkley. Dolbeare, 7 Conn, 232. Oxley v. Watts, 1 T. R. 12. A accident—which, as has already been said, is an event happening without fault-can never be a trespass; and, therefore, if one, in hurriedly removing goods from a burning building, should injure another without being chargeable with negligence, he would not be liable for the injury; while, if carelessly or recklessly, he were to throw the goods into the street, where many persons were congregated or were passing, he would justly be held a trespasser upon any one injured. That, however, which is done purposely, though by mistake, is not to be deemed accidental. Therefore, if one goes upon the land of another to take away his own sheep, and by mistake takes some which do not belong to him, his mistake cannot excuse the trespass.' So if one is sent to take property, and does so in good [*439] faith, believing it to belong to his employer, this is trespass in him if the belief proves unfounded. But an employment of force to which the plaintiff assents is no trespass upon his rights unless the assent was in itself illegal, as we have seen it is in some cases of personal injury.' The force that constitutes trespass may be applied either, 1, by the party himself who is responsible for it; or, 2, by some other person for whose conduct, as servant or otherwise, he is accountable; or, 3, by his domestic animals. The principle on 1 Ante, p. 91-2. Dexter v. Cole, 6 Wis. 319. COLE, J.: "We have no doubt but the action of trespass would lie in this case. In driving off the sheep the defendant in error, without doubt, unlawfully interfered with the property of Dexter, and it has been frequently decided that to maintain trespass de bonis asportatis it was not necessary to prove actual forcible dispossession of property; but that evidence of any unlawful interference with, or exercise of acts of own. ership over property, to the exclusion of the owner, would sustain the action. Gibbs v. Chase, 10 Mass. 125; Miller v. Baker, 1 Met. 27; Phillips . Hall, 8 Wend. 610; Morgan . Varick, 8 Wend. 587; Wintringham v. Lafoy, 7 Cow. 735; Reynolds . Shuler, 5 Cow. 323; 1 Chit. Pl. 11 Am. Ed. 170, and cases cited in the notes. Neither is it necessary to prove that the act was done with a wrongful intent, it being sufficient if it was without a justifiable cause or purpose, though it were done accidentally or by mistake. 2 Greenl. Ev. § 622; Guille v. Swan, 19 Johns. 381. There is nothing inconsistent with these authorities in the case of Parker v. Walrod, 13 Wend. 296." See a similar case in Hobart v.. Hagget, 12 Me. 67. Higginson . York, 5 Mass. 341. See Basely v. Clarkson, 3 Lev. 37. 4 See ante, p. 187-8. Also, for the general principle, Cadwell v. Farrell, 28 Ill. 438. which the party is held responsible in the second and third cases is explained elsewhere. The force may be express or implied. Thus false or illegal imprisonment is a trespass to the person imprisoned, though it is sometimes effected by threats or by otherwise exciting the person's fears. So setting a fire which directly communicates with the property of another and destroys it, has been held to be a trespass in respect to such property. But this seems questionable. The degree of force is immaterial to the right of action. If one's horse is hitched where he had a right to hitch him, it is a trespass if another, without permission, unhitches and removes him to another post, however near; but one may justify unhitching a horse from his own fence or shade tree, and removing him, provided it is to a place of safety." As regards the directness of the injury which will distinguish a case in trespass from one in which the remedy must be sought on the special case, there seems to be no better test than this: That if the unlawful force caused the injury before it was spent, this injury must be deemed direct; but if, after the unlawful force was spent, the injury occurred, as a collateral or secondary consequence, it is to be considered indirect. C Thus, where one was injured by the throwing of a lighted squib into a crowd, which only reached him after several persons, in self protection, had repelled it from themselves, this was a trespass, because the plaintiff was injured as a direct con[*440] sequence *of the unlawful act, and before its force was spent. So it is a trespass if one injure another in the careless handling of fire-arms. So, "a man throws a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case, because it is only prejudicial in consequence, for which 1 Jordan . Wyatt, 4 Grat. 151. A leasehold being a chattel interest in realty a sale of it with the fixtures on it does not make the sheriff liable in trespass to a prior vendee of the fixtures, inasmuch as the fixtures are not severed or actually seized as per 5 originally I could have no action at all." So it is a trespass if one turn a stream upon his neighbor's land by carrying a ditch over the line; but if he only set up a spout on other lands, which may carry water there when it rains, or a dam which may turn it there, the injury, when it comes, will arise on the special case.' So if one carelessly drives against another, this is a trespass; but if his servant is guilty of the like want of care, the action should be case. So, though one of several stage proprietors, who is himself driving the coach, might be sued in trespass for carelessly driving against the plaintiff and injuring him; yet if other proprietors are sued with him who were not personally connected with the force, the action must be case." A disturbance of an incorporeal hereditament, such, for example, as a right of way, is not a trespass, because the right, being intangible, is not the subject of force. Neither is a forcible injury to property, in which the plaintiff has only a re versionary *interest, a trespass, since he can have in such [*441] property no constructive possession. Anything is the subject of trespass in which the law recognizes 'PARKER, Ch. J.. in Reynolds . Clarke, Stra. 634, 636. Reynolds v. Clarke, Stra. 634. Leame v. Bray, 3 East, 593. See, to same effect, Sheldrick v. Abery, 1 Esp. 55; Day v. Edwards, 5 T. R. 648; Savignac v. Roome, 6 T. R. 125. Haggett v. Montgomery, 5 Esp. (2 N. R.) 446. Compare Williams v. Holland, 6 C. & P. 23, and Ogle v. Barnes, 8 T. R. 187, explained in Leame v. Bray, 3 East, 593, 595. So if the servant strikes plaintiff's wife. Drew v. Peer, 93 Penn. St. 234. See Allegheny, &c., R. R. Co. v. McLain, 91 Penn. St. 442. An action of trespass does not lie against a railroad company for the destruction or injury of animals run over by its cars or engines, unless the wrongful act was done by its direction, or with its assent. The conductor, engineer, or other subordinate agent who has charge of the train at the time of the accident is not, for this purpose, the representative of the corporation. Selma, Rome & Dalton R. R. Co. v. Webb, 49 Ala. 240, citing Phil., G. & N. R. R. Co. v. Wilt, 4 Whart. 143. 5 Moreton v. Hardern, 4 B. & C. 223; S. C. 6 D. & Ry. 275. Perhaps, however, where negligence is the gist of the action, case may at all times be brought, even though the injury may be direct. Hall. Pickard, 3 Camp. 187. The case was one in which horses had been let by the plaintiff for a certain time, and one of them was run against and killed before the time had expired. And see Lunt v. Brown, 13 Me. 236. But a landlord may maintain trespass against the vendee of crop of a sub-lessee for injury to landlord's shrubbery and to cornstalks which under original lease were to be the landlord's, although the entry was with consent of tenant. Babley v. Vyse, 48 Ia. 481. |