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9 (Pa. 1844).


Harrop v. Hirst, L. R. 4 Exch. 43, the inhabitant householders of a district
were entitled by custom to a flow of water to a spout on a highway, and to
the use of the water in their houses for domestic purposes. A riparian pro-
prietor through whose land the water flowed on its way to the spout, on vari-
ous occasions, diverted the water so as sensibly and materially to diminish its
flow, and various inhabitants of the district were thereby inconvenienced by
failing to obtain water at the spout when they wanted it. The plaintiffs, be-
ing occupiers of a house in the district, brought suit against such riparian
proprietor for an infringment of their right, but the jury found that they
had not personally sustained any actual inconvenience from the want of wa-
ter. It was held, nevertheless, that the action was maintainable, inasmuch as
the acts of the defendant, if continued, would be evidence of a right in dero-
gation of the right of the plaintiffs as inhabitants of the district."

Stipreme Court of Iowa, 1902. 116 Iowa 458.

Action at law to recover damages for an alleged assault and
battery. There was a verdict and judgment for defendant, and
plaintiff appeals. — Affirmed.

Weaver, J. Plaintiff and defendant live upon adjoining lots.
There is frequent war between the families. The casus belli in the
present instance is to be found in the following circumstances :
Upon the boundary line between the lots is a tight board fence, a
part of which was built by plaintiff's husband; but, unfortunately,
this barrier, while all sufficient to prevent the passage of the dove
of peace, is neither high enough nor tight enough to prevent the
interchange of brick bats or the bandying of opprobrious epithets.
On May 30, 1898, the defendant, while at work in his garden,
claimed to have narrowly escaped a brick hurled in his direction by
one of the plaintiff's children, and in his indignation at the unpro-
voked bombardment threatened the lad with arrest. Plaintiff and
her husband, being at work near by, heard the threat and took
up the quarrel. About this time plaintiff's husband discovered that
a ladder belonging to the defendant was hanging upon a peg or
block attached to the partition fence, and, conceiving this to be a
cloud upon his title, he forthwith attempted to remove it, while de-
fendant, seeing the peril in which his property was placed, rushed
to its defense. Whether plaintiff himself laid violent hands on
the ladder is a matter of grave dispute. She denies it, and says
that the height and depth of her offending consisted in her leaning
up against the fence with" one arm quietly hanging over the top
thereof, and in stimulating her husband's zeal by audible remarks
about the "crazy fool" who was bearing down upon them from the
other side. She further avers that while occupying this position
of strict neutrality, the defendant assaulted her vi et armis, and
with his clenched fist struck the arm which protruded over the
fence top into his domain. Defendant denies the striking, and says


that plaintiff, instead of being a peaceable and impartial observer
of the skirmish, was herself a principal actor, and that in aid of her
husband she climbed upon some convenient pedestal, and, hanging
herself across the fence, reached down, and with malice afore-
thought seized the ladder and wrenched it from its resting place.
Thereupon, actuated by a natural and lawful desire to protect his
property from such ravishment, and being goaded on by statements
from the other side of the fence reflecting upon his mother and
casting doubt upon his proper rank in the animal kingdom, he gently,
and without unreasonable force, laid his open hand upon plaintiff's
arm, and mildly but firmly suggested the propriety of her "keeping
on her own side of the fence."

It is said that the court erred in instructing the jury that, if
plaintiff leaned over the partition fence and attempted to interfere
with the ladder, defendant had the right to use such force upon her
as was reasonably necessary to cause her to desist, and to expel her
from his premises. It is claimed this instruction is wrong, not
only as a matter of legal principle, but because no such defense
was pleaded. As to the matter of pleading, we have to say, with-
out attempting to decide whether this defense is not available under
the general denial, that the defendant did, before verdict, amend his
answer and plead specifically that he was acting in justifiable defense
of his property. There was no error in permitting the amendment.
The general doctrine announced in the instruction is, in our judg-
ment, correct. The mere fact that the plaintiff did not step across
the boundary line does not make her any less a trespasser if she
reached her arm across the line as she admits she did. It is one
of tne oldest rules of property known to the law that the title of the
owner of the soil extends, not only downward to the center of the
earth, but upward usque ad coelum, although it is, perhaps, doubtful
whether owners as quarrelsome as the parties in this case will ever
enjoy the usufruct of their property in the latter direction. The
maxim, "Ubi pars est ibi est totitm," — that where the greater part is,
there is the whole, — does not apply to the person of a trespasser,
and the court and jury could therefore not be expected to enter
into any inquiry as to the side of the boundary line upon which
plaintiff preponderated, as she reached over the fence top. It was
enough that she thrust her hand or arm across the boundarv to
technically authorize the defendant to demand that she cease' the
intrusion, and to justify him in using reasonable and necessary force
required for the expulsion of so much of her person as he found
upon his side of the line, being carr?ful to keep within the limits of
the rule, "Mollitcr manus {mj-csuit." so far as was consistent with
his own safety. Under the instructions of the court, the jury must
have found that the defendant kept within the scope of his legal
rights in this respect, and that the alleged assault was not established
by the evidence.

The judgment of the district court is affirmed.^

\4ccord: Ellis v. Loftus Iron Co., L. R. 10 C. P. 10 (1874'). where the
defendant's horse kicked and bit the plaintiff's mare through the fence, the


Trespass to Personal Property,

Supreme Court of Vermont, 1868. 40 Vt. 636.

Action on the case. Plea, general issue, and trial by jury at the
September Term, 1867, Barrett, J., presiding.

The plaintiff's declaration contained two counts ; the first count
alleges the bailment of the mare in question, and a colt, for the pur-
pose of being kept through the winter, and that the defendant drove
and rode said mare, and so carelessly and immoderately used her,
that said mare miscarried her foal, and became of little value to
the plaintiff.

The second count alleges that the defendant rode and drove,
and otherwise used said mare, without permission or consent of the

mare being within the plaintiff's premises. In Pickering v. Rudd, 1 Starkie
56 (1815), Lord Ellenborough expressed a doubt as to whether an intrusion
upon the column of air above the plaintiff's land whether by a projecting board
or a balloon would be a trespass, though holding that if inconvenience was
caused thereby, an action could be maintained. It is, however, held in Smith
V. Smith, 110 Mass. 302 (1872), that if the eaves of the defendant's barn pro-
jected over the plamtiff's close he was guilty of trespass — for "it is a wrong-
ful act on the part of the defendant which, if continued for twenty years,
might give him a title to the land by adverse possession.

It is a trespass to string wires on the close of another though at a con-
siderable height above the ground. Fry, L. J., in Wandsworth Board of
Works v. United Telephone Co., L. R. 13, Q. B. D. 904 (1884), p. 927 (sem-
ble); Butler v. Frontier Telephone Co., 186 N. Y. 486 (1906).

In Lamprey v. Dans, 86 Minn. 317 (1902), the defendant was enjoined
from shooting over the plaintiff's "duck pass" — a sheet of water over which
ducks flew from lake to lake — but here it was shown that the defendant's act
frightened away the ducks and diminished the value of the plaintiff's property
as a shooting place.

No case has ever determined whether the passage of a balloon or air
ship over the land of another is or is not a trespass. In Kenyon v. Hart 6
B. & S. 249 (1865), Blackburn, J., says, p. 252, that he understood "the good
sense" of the doubt of Lord Ellenborough on the subject but "not the legal
reason for it." In an able paper on "The Beginnings of an Aerial Law," 4
Am. Journal of International Law, 109 (1910). A. K. Kuhn, Esq., approves
of the statement of Sir Frederick Pollock in his Law of Torts, 8th ed., p.
348, that "the most reasonable rule" would be that "the scope of possible
trespass is limited to that of effective possession," and cites — "The Code of
the Canton of Grisons" (in effect 1862, § 165), providing that: "Property in
land extends to the airspace (above) and the earth beneath as far as these
may be of productive value to the owner." The German Civil Code (in ef-
fect 1912) also recognizes the extension of property upwards and downwards
(§667 — 1900), but in a clause for which air navigation is largely responsible,
it is declared : "But the owner cannot prohibit such interferences undertaken
at such a height or depth that he has no interest in their prevention."


plaintiff, and that said mare was greatly injured and miscarried her
foal by reason of said riding, using and driving.

The plaintiff requested the court to charge the jury that if they
found the contract did not authorize the defendant to use said
mare as the evidence tended to show he did use her, that the plain-
tiff was entitled to recover by reason and on account of such use,
even though such use did not injure said mare or cause the loss of
her foal. But the court refused so to charge, but held that if the
jury should find that the contract did not authorize the defendant to
use said mare as the evidence tended to show he did use her, still
the plaintiff would not be entitled to recover, unless the jury should
find that such use injured the mare or caused her to lose her foal.
The plaintiff thereupon consented that a verdict in said cause be
taken for the defendant, with leave to the plaintiff to except. Ver-
dict for the defendant. Exceptions by the plaintiff.

Wilson, J. The plaintiff's claim for nominal damages rests
on the allegation that the mare was injured by use, and that allega-
tion is fully disproved by the evidence and verdict of the jury.
It is true that for an unlawful entry upon real property, or disturb-
ance of incorporeal rights, when the unlawful act might have an
effect upon the rights of the party and be evidence in favor of the
wrongdoer, if his right ever came in question, an action may be sup-
ported, though there be no actual damage done. But it would seem
to be settled that an action for trespass to personal_ property will
not lie, when no unlawful intent, or disturbance of a right of posses-
sion, is shown, and when no actual damage has been done,_ but all
damage is expressly disproved, unless there be some right in ques-
tion, which it is important to the plaintiff to establish. Paul v.
Slason, 22 Vt. 231 ; Fairbanks v. Kittredge, 24 Vt. 8; Sedgwick on
Dam. 62. In this case, the evidence tended to show that the de-
fendant used the mare under claim of right, and there is no evidence
of any wanton act on the part of the defendant in respect to the
property. There is no right in question in respect to the title to
the property. No actual damage was done, and we think the plain-
tiff is not entitled to nominal damages under the circumstances of
the case.

The judgment of the county court is affirmed.^

"■Accord: Dubuc de Marentillc v. Oliver, 1 Pennington 379 (N. J. 1808).

So in Slater v. Szmn, 2 Stranp;e 872, Raymond, C. J., said that an action
on the case for beating a horse differed "from trespass for assaulting a man,
when the assault is the cause of the action ; but here the assault on the horse
is no cause of action, unless accompanied with special damage," and compare
the charge of Tappan. J. to the jury in Keller v. Mosser, Tapp. 75 (Ohio Cir.
Ct. 1816), an action of trespass quare clausum f regit.

Where, however, personal property is carried away or destroyed, it is im-
material how small its value is: Fullam v. Stearus. 30 Vt. 443 (18571, pp.
456-7; see Seneca Road Co. v. Auburn & R. Co., 5 Hill 170 (N. Y. 1843), p.

Notwithstanding the statement in Marlow v. Weekes, Barnes. Notes. 452,
that a writ of trespass vi et armis for assaulting and beating a beast appears
in the Register, Professor James Barr Ames says in a note to that case in


his Selection of Cases on the Law of Torts, Vol. 1, p. 49, that "There seems
to be no such writ in the Register. Trespass for the asportation or the de-
struction of a chattel are the only writs for trespass affecting personal prop-

Supreme Court of New York, 1827. 7 Cozv. (N. Y.) 735.

On error from the C. P/ of the city and county of New York.
The action in the court ^eiow was trespass de bonis asportatis by
Lafoy against Wintringham. It appearedon ^e trial, that Win-
tringham was a constable, who held a fi.fa: issued by the marine
court of the city, against the goods and chattels of one Gallis ; and
that, on the 19th of January, 1826, he levied on the articles in ques-
tion, consisting of jewelry in the store occupied by Gallis, who was
present at the levy. That Gallis informed the defendant below that
the goods had been assigned by him (Gallis) and the defendant
below said he was indemnified. That Gallis placed the articles
on the glass case, so that the defendant below might look at them,
to ascertain their value. That the defendant below made an in-
ventory, and said he would remove the goods unless security was
given that they should be forthcoming, to answer the execution.
The security was, therefore, given, and the articles were left in the

On this evidence, the defendant below moved for a nonsuit,
which being denied, he excepted. Verdict for the plaintiff below of

Curia, per Savage, Ch. J. Was there any evidence of a tres-
pass? If a sheriff takes the goods of a stranger, he is liable in this
action. It is contended, however, that admitting the goods to be-
long to the plaintiff, the defendant did no tortious act. Every un-
lawful interference by one person with the property or person of
another, is a trespass. The defendant in the court below undertook
to control the property levied on. He took it into his possession,
though there was no manual seizing of it. He was about to take it
away, and would have done so, but for the security given him that
it should be forthcoming upon the execution. He exercised a do-
minion over it. This was enough to constitute him a trespasser, he
having no authority. Trover lies against a defendant who under-
takes to control property in defiance, or exclusion of the owner.
(5 Cow. (N. Y.) 325, 6, and the cases there cited.) The same doc-
trine is applicable in trespass, as in trover where the conversion is
the tortious intermeddling with the goods of another.

The judgment must be affirmed.

Judgment Affirmed.

Accord: Miller v. Baker, 1 Mete. (Mass.) 27 (1840) ; Morse v. Hurd,
17 N. H. 246 (1845). So it was held "a seizure might be constructive as well
as actual" and that a refusal to allow goods to be removed until rent was paid
amounted to a distress. Cramer v. Matt, L. R. 5 Q. B. 357 (1870) ; and see
Carev v. Bright, 58 Pa. 70 (1868), compare Martin v. Houck, 141 N. Car.
317 (1906).


The Essential Elements of Trespass.

Injury to the Plaintiff.

(a) Assault.

Supreme Court of Indiana, 1834. 3 Blackf. (Ind.) 407.

Error to the Allen Circuit Court.

Stevens, J. Trespass, assault and battery. Plea, not guilty.
Jury trial, verdict and judgment for the defendant. It appears of
.record in this case, by a bill of exceptions, that during the trial of
the cause, after the parties had closed their evidence and arguments
to the jury, and before the jury had retired, the plaintiff asked the
court to charge the jury that if they thought, from the evidence, :he
defendant struck at the plaintiff with a stick, in a violent and angr^
manner, within striking distance of him, they ought to find for the
plaintiff: which charge the court gave, but added as an additional
charge, that if no damage was proved to have resulted from the said
assault, they ought to find for the defendant. To this additional
and latter charge the plaintiff excepted, and prosecuted this writ
of error.

The only question to be determined is, whether that latter and
additional charge of the court was correct?

An assault is an attempt or offer with violence to do a cor-
poral hurt to another, as if one hft up his cane or fist at another in
a threatening manner, or strike at him with a stick, his fist, or any
weapon, within striking distance, but miss him. This is called an
unlawful setting upon one's person, and is inchoate violence for
which the party assaulted may have redress by an action of trespass
vi et armis, and shall recover damages as a compensation, although
no actual suffering or injury is proved. The damages are not as-
serted for the mere corporal injury or pecuniary loss, but for the
malicious and insulting conduct of the defendant. 3 Bl. Comm.
120; I Bac. Abr. 242; i Saund. on PI. & Ev. 103, 104. From this
it appears that the above additional and latter charge of the Circuit
Court to the jury is incorrect, and should not have been given. ^

^ So in Hurst v. Carlisle, 3 P. & W. 176 (Pa. 1831). where it was held that
an action of assault lies without proof of contact or immediate injury, an as-
sault was said to be "an attempt to commit" battery wounding or mayhem;



(b) Battery.
UNITED STATES v. ORTEGA, 2 ante page 23.

(c) False imprisonment.
Valentine, J., in COjMER v. KNOWLES, i antefpa.g& 2y.

(d) Trespass to real property.


Court of Appeals of South Carolina, 1834. 2 Hill 470.

The presiding judge made the following report:
Trespass quare clansam f regit. The trespass was committed on
the woodlands of the plaintiffs, and consisted in cutting a few sap-
lings and bushes along an old path, in order to open it sufficiently
for the passage of wagons, carts, etc. The defendant supposed the
land belonged to another person, to whom he applied for permission
and obtained it, both being under a misapprehension as to the plain-
tiffs' line. None of the witnesses could venture to assess the value
of the timber cut, or estimate the damage. I instructed the jury if
there were actually no damage done, or if it were so inconsiderable
that it could not be estimated, as the defendant set up no claim to
the land, and supposed he had permission of the real owner, they
might find a verdict for the defendant ; and they did so.

The plaintiffs gave notice of an appeal in this case, and that
they w'ould move the Court of Appeals for a new trial, on the fol-
lowing grounds :

1. Because a trespass having been proven, the verdict could
not legally be for defendant.

2. Because his honor was mistaken in law, in charging the
Jury that where the trespass was very small they might find for

Harper, J. This is a very unimportant case, but in strictness
of law I suppose the plaintiffs are entitled to their motion. If a
trespass be proved, the plaintiffs are entitled to some damages,
though they be merely nominal. Some damage was certainly proved,
though very trifling. In some cases, w^here the jury has been rightly
instructed on the point of law, but in cases of very trifling trespass,

and see Butler v. Stockdale, 19 Pa. Super. Ct. 98 (1902) ; and Handy & Tiill
V. Johnson, 5 Md. 450 (1854), a case where the defendant forced himself into
the plaintiff's bedroom and shook his fist in his face in the course of an angry
altercation, in which it was also held that "the jury can not infer a want of in-
tention to do violence or injur\' merely from the failure to strike, in the ab-
sence of any declaration or circumstances indicating an absence of such inten-
tion, other than the fact that no blow was given," p. 465.


has thought proper to find for the defendant, this Court being satis-
fied that substantial justice was done, has refused to interfere. But
this is the privilege of the jury. The Court is bound to afiford relief
against an erroneous instruction by the Court on a point of law.
There is something in the reasoning of the plaintiffs' counsel. Xo
trespass can be conceived more trifling than the mere passing over
the unclosed land of another, and it would be impossible to estimate
the damage resulting from a particular act of this sort. Yet, if no
recovery could be had in a case of this sort, the trespasser, by repe-
tition of the act and the lapse of time, might acquire the right of
way, in spite of anything that could be done to prevent it.

The motion is granted.^

(e) Trespass to personal property.
GRAVES V. SEVERENS, ante page 40.

Volition and Intention.

(a) Trespass to the person.


King's Bench, 1695. 1 Lord Raymond, 38.

Trespass, assault, and battery. The defendant pleads tnat he
rode upon a horse in the king's highway, and that his horse, being
aft'righted, ran away with him, so that he could not stop the horse ;
that there were several persons standing in the way, among whom
the plaintiff stood ; and that he called to them to take care, but that,
notwithstanding, the plaintiff' did not go out of the way, but con-
tinued there ; so that the defendant's horse ran over the plaintiff
against the will of the defendant \.quoe est eadem traiisgrfssjo^ etc.
The plaintiff demurred. And Sarjeant Daniall, for the defendant,
argued that if the defendant in his justification shows that the ac-
cident was inevitable, and that the negligence of the defendant did
not cause it, judgment shall be given for him. To prove which he
cited Weaver v. JVard, Hobart 134.

Northey, for the plaintiff, said, that in all these cases the de-
fendant confessed a battery, which he afterward justified ; but in
this case he justified a battery which is no battery. Of which opin-
ion was the whole court ; for if I ride upon a horse, and J. S. whips
the horse so that he runs away with me and runs over any other

^Accord: Sefton v. Prentice, 103 Cal. 670 (1894) ; Smcthurst v. Journey,
Jl Houst. 196 (Del. 1855) ; but see Mahle v. Grierson, 2 Willson Tex. Civil
App., § 764 (1885).


person, he who whipped the horse is guilty of the battery, and not
I. But if I by spurring was the cause of such accident, then I am
guilty. In the same manner, if A takes the hand of B, and with it
strikes C, A is the trespasser, ancLjiotB. .And, per curiam, the de-
fendant might have given this _ju^tmcafion m evidence, upon the
general issue pleaded. And therefore judgment was given for the

Accord: Goodman v. Taylor, 5 C. & P. 410 (1832) : Steudle v. Rentchler,
64 111. 161 (1872). See also, Davis v. Saunders, 2 Chitty 639 (1770).


King's Bench, 1616. Hobart, 134.

Weaver brought an action of trespass of assault and battery
against Ward. The defendant pleaded that he was, amongst others,
by the commandment of the lords of the council, a trained soldier
in London, of the band of one Andrews, captain, and so was the
plaintiff : and that they were skirmishing with their muskets charged
with powder for their exercise in re militari against another captain
and his band ; and as they were so skirmishing, the defendant,
casnaliter et per infortunium et contra voluntatem suam, iji_d i.scha rg-
ing his piece, did hurt and wound the plaintiff" ; which is the same,
etc., absque hoc, that he was guilty aliter sive alio modo. And, upon
demurrer by the plaintiff, judgment was given for him; for, though
it were agreed that if men tilt or turney in the presence of the king,
or if two masters of defence playing their prizes kill one another,
that this shall be no felony, or if a lunatic kill a man, or the like :

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 8 of 124)