CHAPTER V. TORTS TO PROPERTY. Wrongs to property are (1) Trespass; (2) Nuisance; (3) Conversion; (4) Slander of Title. TRESPASS. Trespass may be either trespass to person or personal property, or to realty. Trespass to personalty has been judicially defined as a wrongful act done to goods with which the party Definition. has no right to meddle" (1). Among instances of trespass to person or personal property may be mentioned letting loose a dangerous animal, carrying away goods, driving or striking cattle, abusing or destroying a chattel found. Scratching the panel of a carriage was given as an example of trespass to personalty by Baron Alderson, whose definition we have just quoted. The following are instances of trespass to realty : Throwing stones, rubbish, or materials of any kind on the land of another, allowing cattle, poultry, or domestic animals to go upon another man's land (unless the owner of the animals can prove that his neighbour was bound, by contract or prescription, to fence for his benefit), fixing a spout so as to discharge water upon another man's land, suffering filth to ooze through a boundary wall and to run over another's close or yard without his leave or permission, unless some right has been gained to interfere in any such way with the land of one's neighbour. In addition to all these particular instances, and a great multitude which will be found in decided cases, the general principle must be borne in mind that the right of the owner of land being a right in rem is an exclusive right to the quiet possession and enjoyment of it, and every entry thereon without his leave, or by lawful authority, constitutes a trespass, as has been said "if a man's land is not surrounded by any (') Per Alderson, B., Fouldes v. Willoughby, 8 M. & W. 549. Six Carpenters' Cuse. Defences to action for trespass. actual fence, the law encircles it with an imaginary, to pass which is to break and enter his close" (1). A famous case with regard to the law of trespass is the Six Carpenters' Case which is to be found in Lord Coke's Reports (2). In that case the six carpenters had entered the plaintiff's house, which was a common wine tavern with a common sign fixed at the door. They were served with a quart of wine for which they paid, and they were afterwards at their request served with another quart of wine and a pennyworth of bread for which they refused to pay. The plaintiff then brought his action for trespass. The Court in deciding that an action for trespass would not lie, laid down among other things the following celebrated propositions: (1) Where a man abuses an authority or licence given him by the law, he becomes a trespasser ab initio, i.e., he is considered to have entered with an illegal intent. The wrongful act, as Blackstone says, is deemed to affect and have relation back to his first entry, and to make the whole a trespass. (2) Where a man abuses an authority or licence given him by another party, he may be punished for such abuse, but he is not a trespasser ab initio. (3) A mere nonfeasance (i.e. an omission to do something) cannot make a person who has had an authority or licence given him by the law, a trespasser ab initio. As it was found that this doctrine of trespass ab initio bore extremely hard on landlords, the statute 11 Geo. 2, c. 19, s. 19, was passed, which provided that where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio; but the party grieved may recover satisfaction for the damage, and no more (3). Among the various defences which may be pleaded to an action for trespass are: 1. Leave and licence. But it must be borne in mind that a mere licence (4), even under seal, is revocable, e.g. licence to hunt in a park, which merely renders the act of hunting lawful which otherwise would he unlawful, but if the licence be connected with a grant, the party granting cannot generally revoke it so as to defeat his grant. 2. Liberum tenementum, viz. that the land on which the (1) Addison on Torts, 6th ed. p. 360. (2) 8 Rep. 146a; Smith's Leading Cases, vol. i. (3) 1 Smith's Leading Cases, 9th ed. p. 149. (") See Wood v. Leadbitter, 13 M. & W. 838, ante, p. 363. action for trespass was alleged to have been committed was at that time Defences to the defendant's freehold. In this way the question of title to land may be tried. 3. That the entry was to retake goods; but here the defendant must prove that the goods had been placed there by the plaintiff or stolen. 4. That the entry was to demand or pay money to execute the process of the law, or that the house was an inn or publichouse, because the mere fact of keeping such a house confers a general right upon all to enter. 5. Necessity, as in cases where highways have become impassable, or where defendant has sought to escape some pressing danger. 6. Abatement. That the entry was made to abate an existing nuisance after due notice. 7. That the acts complained of were lawfully done under the powers and provisions of an Act of Parliament (1). NUISANCE. trespass. Nuisance (2) is constituted by the unlawful disturbance of a Definition. man in the enjoyment of his property, or in the exercise of a common right. A nuisance may be either public or private. A public nuisance affects the Queen's subjects at large, or a Public and considerable portion of them, as the inhabitants of a particular private parish or town. The person who commits a public nuisance is liable to a criminal prosecution (3). A private nuisance affects an individual or a determinate group of individuals, and gives rise to civil action only. The distinction between a public and a private nuisance was explained in a very celebrated case (4) as follows:-"To constitute a public nuisance, the thing must be such as in its nature and consequences is a nuisance, an injury or damage to all persons coming within the sphere of its operations, though it may be so in a greater degree to some than it is to others. For example, take the case of the operations of a manufactory, in the course of which operations volumes of smoke or of noxious effluvia are emitted. To all persons who are at all (') Ringwood on Torts, p 98, et seq. (2) The term nuisance is derived from the French nuire, to do hurt or to annoy, and is applied indiscriminately to infringements of the en joyment of proprietary and personal (3) Pollock on Torts, p. 324. nuisance. Nuisance. within the range of these operations it is more or less objectionable, more or less a nuisance in the popular sense of the term. It is true that to those who are nearer to it, it may be a greater nuisance, or greater inconvenience, than it is to those who are more remote from it; but still to all who are within the reach of it, it is more or less a nuisance or an inconvenience. Take another ordinary case, the most ordinary case of a public nuisance, the stopping of the king's highway, that is a nuisance to all who may have occasion to travel that highway. It may be a much greater nuisance to a person who has to travel it every day of his life than it is to a person who has to travel it once a year or once in five years; but it is more or less a nuisance to every one who has occasion to use it. If, however, the thing complained of is such that it is a great nuisance to those who are more immediately within the sphere of its operations, but is no nuisance or inconvenience whatever, or is even advantageous or pleasurable to those who are more removed from it, it does not come within the scope of the term public nuisance." The learned judge then illustrated his meaning by the case before him when he considered that a peal of bells, though an extreme nuisance to persons within a few feet or yards of them, might be a positive pleasure to persons at a distance from them, and by the case of a person building up a wall and darkening ancient lights, which though a private nuisance to each of half-a-dozen persons aggrieved by it, could not be regarded as a public nuisance for which an indictment would lie at the suit of the Crown, or for which the AttorneyGeneral might bring an action. Instances of nuisances given in Addison on Torts, are, erecting a building overhanging a house or land of one's neighbour, affixing a spout or projection which causes, or has a tendency to cause, an unnatural quantity of rain-water to descend on a neighbour's house or land, unrepair or neglecting to cleanse sewers, drains, and watercourses, creating offensive smells, or carrying on noisome trades, &c. (1). It is no answer to an action for nuisance to show that the trade is very convenient for the defendant or very advantageous to the public if it is offensive and injurious to the particular individual who complains of it. It was said that in one case "that a tan-house is necessary, for all men wear shoes," but a (1) Addison on Torts, 6th ed. p. 362, et seq. See Giles v. Walker, 24 Q. B. D. 656, where it was decided that an occupier of land is not bound to cut thistles so as to prevent their seed from being blown upon the land of another. tan-house may be pulled down if it causes a nuisance to others. Nuisance. A marked distinction is however made by the law between nuisances which cause material injury to property and nuisances which only cause personal discomfort, for in the latter case regard is had to the locality and other circumstances, and a man must be prepared to submit to a greater degree of personal discomfort in certain respects in a crowded locality than in a secluded part of the country. With regard to property the maxim, Sic utere tuo ut alienum non lædas, is strictly respected (1). "If a man," said Lord Westbury, in a well-known case, "lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. The law, however, is different where property is concerned. Submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances, the immediate result of which is sensible injury to the value of the property." CONVERSION. An action for conversion lies where the defendant has wrongfully converted the plaintiff's goods to his use, or has wrongfully deprived him of the use and possession of them. The remedy for this wrong was formerly the action of trover. "Any asportation of a chattel," said Baron Alderson, "for the use of the defendant or a third person amounts to a conversion, for this simple reason, that it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times and in all places. When, therefore, a man takes that chattel, either for the use of himself or for another, it is a conversion; so if a man has possession of my chattel, and refuses to deliver it up, this is an assertion of a right inconsistent with my general dominion over it, and the use which at all times and in all places I am entitled (1) St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. VOL. I. 2 I |