WILLIAMS v. ESLING.

(4 Barr, 486. Supreme Court, Pennsylvania, 1846.)

Entry upon Land. Damage. An action lies for a trespass upon a right of way without proof of actual damage.

TRESPASS on the case for obstructing a right of way over a court. The judge charged the jury that the plaintiff must show some actual hindrance or obstruction to his passage; and that a mere deposit of articles in the court, if removed before causing any obstruction to the plaintiff, would not give a cause of action. J. W. Biddle, for plaintiff in error. McIlvaine, contra.

GIBSON, C. J. An action was maintained in Kirkham v. Sharp, 1 Whart. Rep. 333, by the grantee of a private way, against the owner of the soil, standing in the place of the grantor; and avowedly without proof of special damage, or actual obstruction in any particular instance. The necessity of such proof was not even alleged. The difference between that case and this is, that the action here is not, as it was there, against the owner of the soil, but against an intruder without any pretence of title whatever, a difference that will scarce be thought to be unfavorable to the present plaintiff. The English courts seem to have wavered as to the application of the principle to analogous cases; but the only thing like a conflicting authority in the case of a way is the dictum in Woolrych on Ways, p. 283, that it is usual for the plaintiff to prove some damage from an obstruction of a private way, though to the smallest amount, merely to satisfy the jury that he has been unable, in consequence of the defendant's conduct, to use his right in so ample and beneficial a manner as he had been accustomed to do. But it is not said that proof of special damage is indispensable, or that it is the basis of the action. The case cited for the dictum is Pindal v. Wadsworth, 2 East, 154, which, however, is the case of an action, not for obstructing a private way, but for injuring a common by taking away the manure dropped on it by the cattle; and the court certainly did say, that if the commoner who sued for it was not injured by it, he would not have a right to reparation; but it was also said, that the act was a necessary

and an immediate damage. In no English case has there been raised a question about the necessity of special damage in an action like the present; but analogies from actions for surcharging a common bear strongly upon it. Hobson v. Todd, 4 Term Rep. 71, was such an action; and Mr. Justice Buller said that the plaintiff was entitled to recover without proof of specific damage. That was one ground of his opinion; "but there is another ground," said he, "on which the action may be supported, which is, that the right has been injured." The solution of the difficulty is in that one word. In Pastorius v. Fisher, 1 Rawle, 27, it was said that the law implies damage from the violation of every right; but that, without proof of actual detriment, it implies the smallest appreciable quantity. Now, the grant of a way is exclusive, at least as to strangers; and that every intrusion into the enjoyment of an exclusive right subjects the wrongful participant to an action by the owner of it, was directly adjudged in the case of the dippers at Tunbridge Wells (Weller v. Baker, 2 Wils. Rep. 422), who recovered on an action against one who had usurped the office of a dipper, not having been duly chosen at the court baron. The court held that the very act of intrusion was both an injury and a damage,—an injury, by disturbing the plaintiffs in the exercise of their right; and a damage, in depriving them of gratuities which they might have received; and it was held that an action on the case lies for merely a possibility of damage. Yet the dippers were not more impeded in their functions by the intrusion there, than was the plaintiff in the actual use of the alley by the intrusion here; for they were left to get all they could earn, and it was not certain they would have earned a farthing of what the intruder got. But their exclusive right was violated, and a possibility of detriment from it was held to be a subject of compensation. In Hobson v. Todd, Mr. Justice Buller applied the same principle to an action by a commoner, saying that had it not been for the surcharge, the plaintiff's cattle might have eaten every blade of grass that had been eaten by the supernumerary cattle of the defendant. Such a plaintiff might undoubtedly recover without proof that the surcharge had occasioned a scarcity; and why not the plaintiff before us, without proof that ground enough had not been left for the convenient enjoyment of his right? There is an error in forgetting that he is entitled to the exclusive use

of the whole of it, which would equally justify any usurpation of a man's right of property that left him enough for a comfortable subsistence. The very breaking in upon the defendant's privacy was a damage; and if the plaintiff could not sue for it because the extent of it was inappreciable, the defendants might establish a right of participation in the use, by acts of intrusion repeated for twenty years, just as a wrong-doer, it was said by Mr. Justice Buller, in Hobson v. Todd, and by Mr. Justice Grose, in Pindar v. Wadsworth, might establish a right of common, because the cattle of the commoners had been left enough of grass to keep them from starving. With much more force is that principle applicable to the case before us. The legal title to the soil is in the common-law heir of the purchaser of it, who annexed the use of it to the Chestnut Street lots, with which he subsequently parted; and as he has no beneficial interest involved in it, or motive to burden himself with a lawsuit, for a trespass on it, the defendants would certainly gain a concurrent right to the easement by adverse user of it, if no one else could sue for any thing short of an actual hindrance in the enjoyment of it. Who would contest the matter with them? The plaintiff would scarce bring a separate action for each obstruction, or sue for damage to the amount of a few cents, for the detention of his carriage or his cart for a few minutes; for though these petty annoyances are exceedingly irksome in the aggregate, not one of them, singly, would be worth the trouble of a lawsuit. He might as well give up his right at once, as attempt to maintain it by repeated actions for repeated hindrances. But the measure of damages is not the extent of each particular loss. The right being established, a jury is at liberty to enforce it, by making the offender smart for any further violation of it. When the plaintiff showed that impediments were placed in the alley which might have prevented him from attempting to use it, he showed enough to entitle him to a remedy without proof of an attempt actually frustrated; and an intruder can ask no more.

Judgment reversed, and venire de novo awarded.

ANTHONY v. HANEY and HARDING.

(8 Bing. 187. Common Pleas, England, Hilary Term, 1832.)

Trespass quare clausum fregit. Trespass for entering plaintiff's close. Plea, that certain goods of defendants' were there, and that they entered to take them, doing no unnecessary damage. Held, ill.

TRESPASS. The declaration stated that defendants, on the 8th of November, 1830, and on divers other days, &c., between that day and the commencement of the suit, broke and entered plaintiff's close at Much Haddon, in the county of Hertford; and with feet in walking trod down, trampled upon, and consumed and spoiled plaintiff's grass, and with cattle and wheels of divers carts, &c., crushed, damaged, and spoiled other grass; and with the feet of the cattle and the wheels of the carts subverted, &c., the earth and soil of the close, and then and there put, placed, and laid down divers quantities, to wit, 5,000 bricks, &c., in and upon the said close, and kept and continued the same without leave or license and against the will of the plaintiff, and thereby greatly encumbered the close, and pulled down, prostrated, and destroyed one barn, three out-houses, and three leantos of plaintiff, and in so doing dug up and subverted the earth, and made divers holes therein, and seized, took, and carried away the materials of the said barn, out-houses, and leantos.

There was a second count, for seizing, taking, and carrying away a cart and divers goods and chattels of plaintiff; and a third count, for breaking and entering a certain other barn, outhouses, and leantos of plaintiff, &c.

Plea, first, the general issue, on which issue was joined; second, that before and at the said time when, &c., in the said first count mentioned, the defendant, John Haney, was the owner of and entitled unto a certain barn, three out-houses, and three leantos, and divers goods and chattels, to wit, 10,000 bricks, 10,000 tiles, 5,000 planks of wood, 5,000 joists, 5,000 ties, 5,000 girders, 5,000 pieces of wood, 5,000 loads of timber, and 1,000 weight of iron, of great value, to wit, of the value of 2007., then respectively standing and being in and upon the said close of the said plaintiff, in which, &c.; wherefore the said defendant, John Haney, in his own right, and James Haney and Joseph Harding,