diately injurious to the perſon or property of another, and therefore neceſſarily accompanied with ſome force, an action of treſpaſs vi et armis will lie; but, if the injury is only conſequential, a ſpecial action of treſpaſs on the caſe may be brought.
But in the limited and confined ſenſe, in which we are at preſent to conſider it, it ſignifies no more than an entry on another man’s ground without a lawful authority, and doing ſome damage, however inconſiderable, to his real property. For the right of meum and tuum, or property, in lands being once eſtabliſhed, it follows as a neceſſary conſequence, that this right muſt be excluſive; that is, that the owner may retain to himſelf the ſole uſe and occupation of his ſoil: every entry therefore thereon without the owner’s leave, and eſpecially if contrary to his expreſs order, is a treſpaſs or tranſgreſſion. The Roman laws ſeem to have made a direct prohibition neceſſary, in order to conſtitute this injury: “qui alienum fundum ingreditur, poteſt a domino, ſi is praeviderit, prohiberi ne ingrediatur[1].” But the law of England, juſtly conſidering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another’s lands, (unleſs by the owner’s leave, or in ſome very particular caſes) as an injury or wrong, for ſatisfaction of which an action of treſpaſs will lie; but determines the quantum of that ſatisfaction, by conſidering how far the offence was wilful or inadvertent, and by eſtimating the value of the actual damage ſuſtained.
Every unwarrantable entry on another’s ſoil the law entitles a treſpaſs by breaking his cloſe; the words of the writ of treſpaſs commanding the defendant to ſhew cauſe, quare clauſum querentis fregit. For every man’s land is in the eye of the law incloſed and ſet apart from his neighbour’s: and that either by a viſible and material fence, as one field is divided from another by a hedge; or, by an ideal inviſible boundary, exiſting only in the
- ↑ Inſt. 2. 1. 12.
