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a person was held liable in trespass who entered a field where the parson's tithes had been marked off and took them to one of the parson's barns. The defense in the case was that the grain was in danger of being eaten by cattle which were straying in the field; the judges disposed of this contention by saying that if the cattle had eaten the grain the parson would have had a right of action against the owner of the cattle, holding, in a dictum, that if the danger had been from fire or flood, the defense set up in the case would have been a valid one, for in such a case there would not have been a right of action against anyone on account of the destruction.
Hunting upon the land of another is a trespass; as is also an entry upon another's land to recover personal property which has come upon such land by the fault, or with the consent of the owner, of such personal property. The improper use of a highway may also constitute a trespass." Illustrations of trespassess might be added indefinitely. The forms which a trespass against realty may take are so numerous and divergent as to render any classification thereof, an impossibility.
SECTION 29. REALTY WHICH MAY BE THE SUBJECT
The most serious form of trespass is that directed against a dwelling house. To constitute trespass there is no necessity for any violence, a mere entrance will be sufficient.8
If the abutting owner has the fee to the center of the highway he may maintain an action for trespass on the highway, but not if the fee is in the public.10 By a similar rule the abutting owner on a stream, who owns to the centre of such a stream, may maintain an action for trespass to the stream, such as the removal of ice.11
Uninclosed land,12 or land under water,13 are as much the subject of trespass as any other land.
Lewis vs. Jones, 1 Pa. St., 336, for placing fence rails on the streets. Rogers vs. Randall, 29 Mich., 41 for removal of sidewalks. Robbins vs. Borman, 1 Pick. (Mass)., 122, for ploughing up a road. Trespass will lie on the part of the original owner, or his assigns, for the occupancy of a dedicated public street by a railroad, even where such occupancy is under grant from the city, and the railroad is an additional burden. Railroad Co. vs. Hartley, 67 Ill., 329; Stone vs Railroad Co., 68 id., 394.
Plaintiff not only proves possession under his deeds coextensive with his deeds (Brooks vs. Bruyn, 18 II., 539; Barber vs. Trustees, 51 id., 398), but title in fee as well.
The first plea of not guilty put in issue merely the possession of the plaintiff and the fact of the alleged trespass (2 Greenleaf on Evidence, Sec., 613). The second plea, liberum tenementum, admits possession in the plaintiff but justifies owner of the freehold. Fort Dearborn Lodge vs. Klien. 115 Ill., 187.
An adverse right to an easement cannot grow out of a mere permissive enjoyment for any length of time. Quincy vs. Jones, 76 Ill., 244.
Trespass quare clausum fregit will lie on the part of the owner of the fee in the street, and plaintiff has quasi possession sufficient to maintain the suit. Railroad Co. vs. Hartley, 67 Ill., 440; Pekin vs. Brereton, id., 477; Stone vs. Railroad Co., 68 id., 394; Adams vs. Railroad Co., 18 Minn., 260; Cillon on Mun. Corp., Sec. 524 and cases in note.
Ejectment will not lie, because plaintiff is not entitled to possession of the street as against the public. Cincinnati, vs. White, 6 Pet., 431.
10 Galt vs. Chicago, etc., R. Co., 157 Ill., 125.
Bigelow vs. Shaw, 65 Mich., 341,
13 Mitchell vs. Bridges, 113 N. C., 63.
Injuries to fisheries," and oyster beds, line trees,16 and fences," are also trespasses.
The individual owner may maintain trespass for injury to a pew,18 and the trustees of the church, or the congregation, can maintain an action for injuries to the church itself.19
SECTION 30. WHO MAY MAINTAIN AN ACTION FOR
In order to maintain trespass quare clausum fregit, there must have been either an actual possession by the plaintiff at the time when the trespass was committed, either by himself or by his authorized representative, or a constructive possession 20 with the lands unoccupied and no adverse possession." In the case of Galt vs. The Chicago and Northwestern Railway Company,22 this question was discussed as follows: "The action of trespass quare clausum fregit, and the
14 Beckman vs. Kreaner, 43 Ill., 447,
10 Holder vs. Coates, M. & M., 112,
17 Stoner vs. Hunsicker, 47 Pa. St.; 514; Drake vs. Crider, 107 Pa. St., 210.
18 Gibson vs. Wright, Nay, 108;
principles which govern it, are well established and generally understood. Possession by the plaintiff, either actual or constructive, is indispensable. The foundation of the right to bring the action is the invasion or disturbance of the plaintiff's possession. It matters not that one be not the owner of the paramount or other paper title, for, as against a stranger or wrongdoer having no right of possession in himself or authority from the lawful owner, mere proof of possession by the plaintiff will suffice to support the action. (2 Greenleaf on Evidence, Sec. 618). On Cook vs. Foster, 2 Gilm, 652, this court, in defining the action, among other things said: "The basis of the action is an injury to the possession. No person is entitled to recover damages for the injury but the one who has the actual claim or constructive possession of the land. A party having the actual and lawful possession may maintain the action. The real owner, where there is no adverse possession, can maintain the action on the principle that the possession in such case follows the ownership. Where there is an adverse possession the owner is not allowed to bring this kind of action.' The elementary principles here stated have found expression in very many subsequent cases in this court, among which see Halligan vs. Chicago and Rock Island Railroad Co., 15 Ill., 558; Dean vs. Comstock, 32 id., 173; Winkler vs. Meister, 41 id., 349; Barber vs. School Trustees, 51 id., 396; McCormick vs. Husse, 66 id., 315; Ft. Dearborn Lodge vs. Klein, 115 id., 177. According to Blackstone, possession was, in the eye of the law, esteemed sacred and inviolable, whether the land be set apart and inclosed by a material and visible boundary, as a fence, or by an ideal, invisible one, existing only in contemplation of law. In either
case, every unauthorized entry upon the soil of another, or unwarrantable invasion of his peaceable possession, with force, however slight, was a breaking of the close, from which the common law regarded some damage to necessarily ensue, and whatever loss or injury the plaintiff suffered, special or otherwise, his damages by reason thereof were recoverable under this form of action. (3 Blackstone's Com., 209). It is unnecessary to dwell upon this branch of the inquiry. That the action must be brought by the party whose possession has been disturbed or invaded, is too rudimental and familiar to warrant further discussion."
Bare actual possession is sufficient against a mere tort-feasor; 23 but if the person in possession holds less than a freehold he can recover only for the injury to his temporary possession." Neither a lessor, while his tenant is in possession,25 nor a remainder-man," can maintain trespass quare clausum fregit; 27 their only remedy is by action on the case. The action of trespass quare clausum fregit cannot be maintained against a trespassor wrongfully in possession.28
A person having the equitable title, with the right
29 Wilsons vs. Biff, I Dana. (Ky.),
29 Russell vs. Meyer, 7 N. Dak., 335.
23 Bass vs. West, 110 Ga., 698; Beddens vs. Clark, 76 III., 388; Clavey vs. Houdlette, 39 Me., 451; First Parish vs. Smith, 14 Pick. (Mass.), 297.
24 Frisbee vs. Marshall, 122 N. C.,
760. Bartlett vs. Perkins, 13 Me.. 87; H. Holmes vs. Seely, 19 Wend. (N. Y.), 507. The contrary rule is held in Missouri. See Cramer vs. Groseclose, 53 Mo. App., 648; and Parker vs.