Odger's English Common Law

RIGHT TO POSSESSION. 449
these repeated trespasses and for the damage done to his grass. The land-
lord also will have a right to sue if the trespasses were committed in asser-
tion of a right of way across that field ; for it will injure the value of the
freehold if such a right be created.
But where the right which the plaintiff claims is of such
a nature that it does not entitle the plaintiff to take possession
of and occupy the land on which the subject-matter of the
right exists or will exist, our law must perforce dispense with
entry. A man may have an exclusive right or interest in
land the soil of which belongs to another ; and yet such right
or interest in no way entitles him to occupy the land, and
therefore gives him no right to enter on it, except for the
purpose of exercising his right. If any one disturbs that
man's exclusive right or interest, an action of trespass will
lie at his suit without proof of any previous entry.
A person who has a profit a prendre " has such possessory rights that
he can bring an action for trespass at common law for the infringement of
those rights." 1 An action for trespass will also lie at the suit of one who
has an exclusive right to cut turf in a waste belonging to the lord of the
manor, should a stranger cut and carry away any of the turf ; and this with-
out proof of any previous entry. Again any one, who is entitled to the
exclusive enjoyment of a growing crop during the proper period of its
growth and until it has been cut and canned away, may maintain an action
of trespass in respect of such exclusive right. So may any one who is
exclusively entitled to the " vesture " of land, i.e., to corn, grass, under-
wood, &c, growing upon it. 2
(ii.) Next, the plaintiff must prove that the defendant
entered on land of which the plaintiff was in possession.
Any entry upon the land of another, if unauthorised by him
and unjustified by law, is a trespass and actionable, even
though no damage be done. " In determining the question
of trespass or no trespass the Court cannot measure the
amount of the alleged trespass ; if the defendant place a part
of his foot on the plaintiff's land unlawfully, it is in law as
much a trespass as if he had walked half a mile on it." 8
And here note an important distinction between an entry
i Per Lindley, L. J., in Fitzgerald v. Firbank, [1897] 2 Ch. at p. 101.
2 Cox v. Glue (1848), 5 C. B. 533 ; Jo/insou y. Mantes (1873), L. K. 8 C. ?
527 ; and see Mills v. BrooJmr, [1919] 1 K. B. 555.
» Per Lord Camden in Entick v. Carrington (1765), 19 St. Tr. at p. 1066.
B.C.L.
29