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transferable with the land and does not inure to the benefit of the grantee, even if assigned in writing, has been held in a number of well-considered cases. In Chicago and Alton Railroad Co. vs. Maher, 31 an action of trespass was brought by the grantee to recover damages to certain dock property. The injury, occasioned by the erection of a bridge pier in the river, was committed while the property was owned by the grantor, and it was contended that the injury was a continuing one, for which the grantee might recover damages accruing since she became owner. On the other hand, it was insisted that the injury was permanent, depreciating the price of the land, and that for all damages, past and future, the grantor may have sued and recovered,—that the trespass was on the grantor's land, and the damages, if any, were sustained by him, and that he could not, and did not, assign his cause of action to the grantee by the conveyance of the land. In their decision the court said: “We are not aware that any court has ever held that a mere trespass to land, giving a right of action, can be assigned by an instrument in writing for the purpose, or by conveying the land. Such a right of action is not appurtenant to the land, nor does it, like a covenant for title, inhere to or run with the land. It, when accrued, is a personal right, and is not transferable. It then follows that appellee did not acquire the right of action which accrued to her husband by the construction of this protection to the bridge. The action for that wrong was vested in him, and she can recover nothing on account of the placing of the obstruction in front of the dock.'

A tenant in common may maintain an action

$1 91 III., 312.



against an outsider; 32 but generally not against a co-tenant. Mortgagees,33 trustees 34 and irrevocable licensees,

may all sue for trespass. A tenant even on a parol lease, may recover for injury to his possession. SECTION 31. JUSTIFIABLE ENTRIES UPON LANDS OF

ANOTHER. An entry upon the lands of another can be justified in one of the three ways—(1) that the entry was by the express invitation or consent of the owner of the property; (2) that it was by his implied invitation or consent, or (3) that it was by license of the law.

The first class requires no explanation. The second class includes all those cases where a person enters the property of another for ordinary business, on social purposes. Implied consent will be presumed in such cases in the absence of evidence to the contrary.

The third class requires more extended treatment. The law licenses an entry upon the land of another in a large number of different classes of cases, as follows:

(a) A sheriff or other proper officer may enter on property to serve any legal process; 38 it is sufficient protection for the officer if the process be legal on its face.39 A collector's warrant is designed to perform the same office, and confers the same authority as an execution, and when regular and fair on its face will protect the officer executing it. 40

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89 Morgan vs. Hudnell, 52 Ohio St.,

552, 49 Am. St. Rep., 741. 33 Woodruff vs. Halsey, 8 Pick.

for business purposes does so

by license of the law. 88 Wilmarth

Burt, 7 Met. (Mass.), 257; Henderson V8.

(Mass.), 333, 19 Am. Dec., 329. 34 Cox vs. Walker, 26 Me., 504. 35 Richards vs. Gauffret, 145 Mass.,

486. * Weston vs. Granlin, 49 Vt., 507. 87 In a few cases one who enters

upon the property of another

Brown, 1 Cal. (N. Y.), 92. $$ Mower vs. Stickney, 5 Minn. 397;

Turner vs. Franklin, 29 Mo.,

Hill vs. Figley, 25 III., 143.

(b) A creditor of the owner of the land may enter to demand payment of the debt;“ unless perhaps the debt is expressly made payable in another place.

(c) Any person in proper condition has the right to enter upon the premises of those engaged in the business of a common carrier in any of its various branches." This same principle would also apply in the case of certain other forms of business of a quasipublic character.

(d) The owner of property leased to another may enter to see if the tenant is using the property in a proper manner. 43

(e) If personal property which has been sold remain on the land of the vendor, the vendee will generally be authorized to enter and remove the goods."

(f) If a person's goods without his fault have got upon the land on another he may enter to remove


(g) If the owner of land has unlawfully put his goods upon the land of another, the latter may replace them on the land of their owner's.10

(h) The owner of land may enter adjoining land to abate a nuisance.17

(i) A person may lawfully enter the premises of another to extinguish a fire, or rescue an animal from death. The early decisions limit this right to cases where the danger is from some natural force, and exclude cases where the danger is from some act of (j) Necessity may also excuse an entry upon land, as where one is pursued by a dangerous animal, or where the highway is flooded and one is therefore obliged to deviate from it. 48


13 Blackstone's Commentaries,

212. Bigelow on Torts, p. 176. " See subject of Carriers, Volume

V, Subject 13. * Newkirk vs. Sabler, 9 Barb., 652.

McLeod vs. Jones, 105 Mass., 403. * Miller vs. Fowdry Latch, 120,

where the wind had blown the

defendant's apples upon the

plaintiff's land. 46 Cole vs. Maundy, Viner's Abr.

Trespass, 516. 47 Penruddocks Case, 5 Cake, 100 b.

For a discussion nuisances see subject of Equity Jurisprudence Volume VII, Subject 20. 48 Ballard vs. Harrison, 4 M. & S.,

(k) Where land is taken under the right of eminent domain there is of course no trespass, but where the trespasser might have evoked the right of eminent domain but fails to take the proper proceedings, he is not protected.“

(1) Military necessity authorizes entry upon property, 60 but will not excuse indiscriminate plundering.




Trespass ab initio arises where a person lawfully enters upon the property of another, under license of the law, and then abuses his license by doing some tortuous act.52 The doctrine of trespassor ab initio is never applied in cases where the original entry was by the consent or invitation of the party injured. 63 The leading case on this distinction is the early case known as The Six Carpenters Case. The decision in which is in part as follows: "In trespass brought by John Vaux-against Thomas Newman, carpenter, and five other carpenters, for breaking his house, and for an assault and battery, U Sept. 7, Jac., in London, in the parish of St. Giles extra Cripplegate in the ward of Cripplegate, etc., and upon the new assignment, the plaintiff assigned the trespass in a house called the Queen's Head. The defendants to all the trespass praeter 'fractionem domus pleaded not guilty; and as to the breaking of the house said, that the said house, praed'tempore quo, etc., et dui antea et postea, was a common wine tavern of the said John Vaux, with a common sign at the door of the said house fixed, etc., by force whereof the defendants, prae'tempore quo, etc., viz., hora quarta post meridiem, into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, etc. The plaintiff, by way of replication, did confess, that the said house was a common tavern, and that they entered into it and bought and drank a quart of wine, and paid for it, but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to 8d., and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same; upon which the defendants did demur in law; and the only point in this case, was, if the denying to pay for the wine, or non-payment, which is all one (for every non-payment, upon request, is a denying in law), makes the entry into the tavern tortious. And first, it was resolved when entry,authority or a license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; but where an entry, authority or license is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is, that in the case of a general authority or license of law, the law adjudges by

393; Holmes vs. Seely, 19
Wend. (N. Y.), 507; Morey vs.
Fitzgerald, 56 Vt., 487, 48

Am. Rep., 811.
" Bassett vs. Pennsylvania R. Co.,

201 Pa. St., 226; Omaha vs.

Croft, 60 Nev., 59. 80 Barrow vs. Page, 5 Haym.

(Tenn)., 97; Smith vs. Brazel

ton, 1 Herak (Tenn.), 44. 6 See Subject Public International

Law, Volume XII, subject 38.

* Ikley vs. Nichols, 12 Pick. (Mass.,)

270, 22 Am. Dec., 425; Russell
vs. Hanscomb, 15 Gray (Mass.),
166; Wyke vs. Wilson, 173

Pa. St., 12.
& Pike vs. Heinzmann, 89 Ill

. App. 642; Cushing vs. Adams, 18 Pick. (Mass.), 110; Wendell vs. Johnson, 8 N. H., 220, 29 Am. Dec., 648; Hubbell vs.

Wheeler, 2 Ark. (Vt.), 359. 8 Coke, 290.

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