Odger's English Common Law

452 TRESPASS TO LAND.
set up an affirmative case, asserting that he had a right to
enter on the land in question. He may justify his entry by
showing some title or authority in himself, or the consent of
the plaintiff to his entry, express or implied. In either case
he must set out in his pleading the facts on which he relies
as justifying an act prima facie tortious. The fact that the
defendant did not know that his entry was wrongful, or that
he did not intend any harm by it, is no defence to the action,
if in fact it was either intentional or negligent. 1 Thus it
will be no defence to an action of trespass to land that the
defendant honestly believed that the land on which he tres-
passed was his own freehold, if it was not, or that he had a
right to ride across it, when he was out fox-hunting. 2
The most common form of justification is the assertion by
the defendant that he was seised of an estate of freehold in
the land, whether in fee simple, in tail or for life. 8 Such
estate must, of course, be in possession; an estate in remainder
or reversion would give its owner no right to enter on the
land. And to a plea of an estate of freehold in possession it
will be a good answer, if the plaintiff can show that the
defendant or some ancestor of his had granted him a lease of
the premises for a term which has not yet expired. 4
So too
it will be a defence to an action of trespass, if the defendant
can show that he is the lessee of the freeholder and that the
freeholder was entitled to grant him a lease and place him in
possession under it. Again, the defendant may justify a
prima facie trespass by showing that he had some lawful
right to enter on the land
—
e.g., to peaceably retake possession
of his goods or cattle, to demand or pay money there pay-
able, to execute in a legal manner the process of the law, or in
the exercise of any public or private right of way.
Thus, the entry of a landlord to distrain for rent due is justifiable ; so
in some cases is an entry on a neighbour's land to abate a nuisance, or to
1 Holmes v. Mather (1875), L. K. 10 Ex. 261 ; Stanley v. Powell, [1891] 1 Q. B. 86.
2 Paul v. Swmmerhayes (1878), i Q. B. D. 9.
3 This was formerly called a plea of liberum tenementum. It is now usually
accompanied by a counterclaim for possession of the land.
* Year Book 5 Hen. VII., 10 a, pi. 2 ; Odgers on Pleading and Practice, 8th ed. r
p. 268.