Odger's English Common Law

VIOLATION OF A PRIVATE RIGHT. 425
necessary to establish the existence of such right lies, of course,
upon the plaintiff and often involves him in the discussion of
intricate questions of law. In other cases however he can
easily establish a prima facie case ; for whenever a man is
in possession of land or chattels, the law will presume that
his possession is rightful. Hence as against a wrongdoer
bare possession confers a right, for the invasion of which an
action will lie. 1
Thus, an action of trespass will lie for a mere entry upon land in
possession of another. So in an action of trespass to goods the plaintiff
has a good primd facie case, if he can prove that the goods were in his
possession and were taken out. of it by the defendant. But if the owner of
property has parted with possession of it to a tenant or bailee, he must show
that the injury done to it by the defendant was of so permanent a nature
as necessarily to injure his reversionary interest ; otherwise only the person
in possession can bring the action.
Once the plaintiff has established the existence of his right,
he need not prove that he has availed himself of it. For
instance, if a commoner sues for trespass to his common, he
need not give any evidence that he has actually exercised his
Tights of common. 2
In this class of cases proof of actual damage is never neces-
sary to entitle a plaintiff to recover. As soon as he has
proved the existence of the right which he claims and its
violation by the defendant, he has established a prima facie
case, although he has sustained no pecuniary loss. 3
Thus the plaintiff will succeed in an action to recover the possession of.
his goods without proving that he has suffered any pecuniary loss through
being deprived of them. So in actions of libel, but not in all cases of
slander, the plaintiff need not show any special damage. 4
The use and appropriation of a registered trade mark is actionable per se.
And it has been held in America that where the landlord of a well-known
hotel had conferred on the plaintiff the right of placing the name of the
hotel on omnibuses, which fetched his guests from the railway station, the
defendant had no right to place the name of that hotel on his omnibuses,
as this amounted to a false representation that the defendant was in the
employment or under the patronage of the hotel proprietor, and that the
plaintiff had a good cause of action without proof of actual damage. 5
1 Armory v. Delamirie (1722), 1 Str. 504 ; 1 Smith, L. C, 12th ed., 396.
2 Per Taunton, J., in Marzetti v. Williams (1830), 1 B. 4 Ad. at p. 426.
8 See ante, pp. 412—414.
' See post, pp. 522—525, 539—545.
* Marsh v. Billings (1851), 7 Cash. (U. S.) E. 322 ; and see Newhall v. Ireson