TRESPASSER.
Necessarily exceptions have from time to time been recognized to the rule that any entry upon the land of another without his consent is a trespass. An entry may be justified in the course of legal proceedings as where an officer is required to make a levy under an execution ; Haggerty v. Wilber, 16 Johns. (N. Y.) 287, 8 Am. Dec. 321; an execu tion; Bell v. Douglass, 1 Yerg. (Tenn.) 397; Fullerton v. Mack, 2 Aikens (Vt.) 415 ; or au arrest ; State v. Oliver, 2 Houst.
585; Coin. v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510 ; State v. Smith, 1 N. H. 346. Indeed with respect to the right to enter up on land the public necessity and convenience is a justification as in so many other cases, as, for example, where the destruction of property in time of war is required for the public defence; U. S. v. R. Co., 120 U. S. 227, 7 Sup. Ct. 490, 30 L. Ed. 634 ; Respublica v. Sparhawk, 1 Dall. (U. S.) 357, 1 L. Ed. 174; Salt Peter Case, 12 Rep. 12 ; or safety, as to prevent a general conflagration ; Metal lic C. C. Co. v. R. Co., 109 Mass. 277, 12 Am. Rep. 689 ; Surocco v. Geary, 3 Cal. 69, 58 Am. Dec,, 385 ; or the spread of a contagious disease; Seavey v. Preble, 64 Me. 120.
In many cases there is held to be an im plied license as from habitual use of a foot path without objection ; Driscoll v. Cement Co., 37 N. Y. 637, 97 Am. Dec. 761; or space under a sidewalk ; West Chicago Masonic Ass'n v. Cohn, 192 Ill. 210, 61 N. E. 439, 55 L. R. A. 235, 85 Am. St. Rep. 327, reversing 94 Ill. App. 333. A private owner may enter without force seeking the recovery of land ; Fort Dearborn Lodge v. Klein, 115 Ill. 177, 3 N. E. 272, 56 Am. Rep. 133; or of personal property ; Madden v. Brown, 8 App. Div. 454, 40 N. Y. Supp. 714; Cleveland, C. C. & St. L. R. Co. v. Moline Plow Co., 13 Ind. App. 225, 41 N. B. 480 ; or to abate a nuisance; Lan caster Turnpike Co, v. Rogers, 2 Pa. 114, 44 Am. Dec. 179 ; Amoskeag Mfg. Co. v. Good ale, 46 N. H. 53. In some cases accident may excuse trespass but it must be unintentional, unavoidable and without fault on the part of the Jennings v. Fundeburg, 4 Mc Cord (S. C.) 161; and mere mistake is not a justification; Hobart v. Hagget, 12 Me. 67, 28 Am. Dec. 159. So also an entry which would ordinarily be a trespass is sometimes justified on the ground of necessity as where the highway is impassable and one travel ling over it must go upon private property around the obstruction; Morey v. Fitzger ald, 56 Vt. 487, 48 Am. Rep. 811; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; though he must go upon it near the highway and use as little as possible; White v. Wiley, 59 Hun, 618, 13 N. Y. Supp. 205; other cases which have been recognized as sufficient to prevent an entry from a trespass are, saving goods of the owner or of a third person from destruction by water or fire ; Proctor v. Adams, 113 Mass. 376,
18 Am. Rep. 500; 20 Vin. Abr. Trespass (H. a. 4), pl. 24; ibid (K. a.) pl. 3; (though this was a case of trespass to personal property); the preservation of life ; Mouses' Case, 12 Rep. 63; see Respublica v. Sparhawk, supra ;. crossing another's land when in flight for safety from an attack; 6 Bacon, Abr. Tres pass, 674; or mooring to a dock for safety in a storm ; Ploof v. Putnam, 81 Vt. 471, 71 Atl. 188, 20 L. R. A. (N. S.) 132, 130 Am. St. Rep. 1072, 15 Ann. Cas. 1151; and such necessity was held sufficient to justify a violation of the embargo act ; The Brig Wil liam Gray, 1 Paine, 16, Fed. Cas. No. 17,694. But where a right of entry is claimed by reason of necessity, it must be some such overruling one as indicated by those enumer ated, and it must arise without fault in the trespasser; 6 Bacon, Abr. Trespass, 674 ; Anon., Y. B. 6 Ed. IV, 7 pl. 18. Such ex cuses are not sufficient as family affection or charity ; Neilson v. Brown, 13 R. I. 651, 43 Am. Rep. 58 ; Parlet v. Bowman, 2 Rolle, Abr. 567; or the pursuit of wild animals or game; Glenn' v. Kays, 1 III. App. 479 ; Paul v. Summerhayes, 4 Q. B. D. 9.
The declaration must contain a concise statement of the injury complained of, whether to the person, personal or real prop erty, and it must allege that the injury was committed vi et arm and contra pacem..
See CONTINUANDO.
The plea of not guilty raises the general issue, and under it the defendant may give in evidence any facts which show that the property was not in possession of the plain tiff rightfully as against the defeudant at the time of the injury, or that the injury was not committed by the defendant with force. Other matters must, in general, be pleaded specially. See TRESPASS QUAKE CLAUSUM. Matters in justification, as, authority by law ; Burtou v. Sweaney, 4 Mo. 1; defence of the defendant's person or property, taking a dis tress on premises other than those demised, etc. ; 1 Chitty, Pl. 439; custom to enter; Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 333 ; right of way ; Strout v. Berry, 7 Mass. 385 ; etc., must be specially pleaded. In trespass at common law the declaration need not describe the close on which the tres pass was committed ; Meixsell v. Feezor, 43 Ill. App. 180.
Judgment is for the damages assessed by the jury when for the plaintiff, and for costs when for the defendant.
Where debt in trespass pays the judgment, title passes as by analogy to sale; Williston, Sales, sec. 4. See JUSTIFICATION.
As to the early history of trespass, see 2 Holdsw. Hist. E. L. 307, where it is called the "Fertile mother of actions." See 3 Harv. L. Rev. 177, by Maitland.