right to the possession of land may, by a peaceable entry upon the land, acquire sufficient possession of it to enable him to maintain an action for a trespass against any person who, being in possession at the time of his entry, wrongfully continues upon the land(). It is not necessary that the person who makes the entry should declare that he enters to take possession. It is sufficient if he does any act to show his intention, and, having regained constructive possession by his peaceable entry upon the unlawful possession of the occupier, and being entitled to treat the latter as a trespasser, all those who come upon the land without title, after such vesting of possession, are trespassers, and liable to be sued as such. If a landlord, having a right to the possession of land on the expiration of a lease, sends his agent to the land to demand possession, and the agent enters and makes the demand, this is a sufficient entry to clothe the landlord with the constructive possession, so as to enable him to sue in trespass all persons who subsequently come upon the land by the authority of the tenant(s). 446 Evidence for the defence.-Under a traverse of the allegation in the declaration, that the close was the close of the plaintiff, the defendant is at liberty to show title in himself, or some other person under whose anthority he claims to have acted(t).

If the defendant relies upon a plea of liberum tenementum (ante, p. 361), he must prove that the land whereon the alleged trespass was committed was his own soil and freehold, and that he was entitled to the possession of it as against the plaintiff. By this plea the defendant admits, as we have seen, that the plaintiff is in possession, and that he himself is, primâ facie, a wrong-doer; but he undertakes to show a title in himself which shall do away with the presumption arising from the plaintiff's possession. He may do this either by showing title by deed in the usual way, or by proving a possessory title for twenty years(u). If, under this plea, the defendant establishes a title to that part of the close on which the alleged trespass was committed, he will be entitled to a verdict; for he is not bound to prove a title to the whole close, unless he has upon the record expressly undertaken to prove the whole close to be his soil and freehold(x).

When the plaintiff has in his declaration described by name or by

(r) Butcher v. Butcher, 7 B. & C. 402; 1 M. & R. 220. Litchfield v. Ready, 5 Exch. 939. (8) Hey v. Moorhouse, 8 Sc. 168; 6 B. N. C. 52. (t) Jones v. Chapman, 2 Exch. 812. Foster, 14 Gray (Mass.), 495; Miller v. Ind. 496.

(u) Brest v. Lever, 7 M. & W. 595.

See Gilbert v. Felton, 5 Gray (Mass.), 406; Jewett v.
Decker, 40 Barb. (N. Y.) 228; Beach v. Livergood, 15

(z) Smith v. Royston, 8 M. & W. 386. Phillips v. Phillips, 1 N. J. 42.

abuttals the close in which, as he alleges, the trespass was committed, and the defendant pleads liberum tenementum generally, the defendant cannot, by showing that he himself is possessed of a close of the same name and in the same vill, turn the plaintiff round, and prevent him from proving a trespass in his own close, as named in the declaration(y). The defendant must make out his title to the freehold on the very spot described in the declaration; and, on his proving a prima facie right to enter the close because it is his freehold, it will be competent to the plaintiff to prove that it has been demised to him, and to show his lease, if he have one(z). Where separate trespasses are alleged to have been committed in three different closes, specifically described in the declaration, and the defendant, by his plea, says, in effect, that each of them was his own soil and freehold, the issues will be taken distributively, so that the plaintiff may have a verdict as to one close, and the defendant as to another(a)..

447 Proof of leave and license.-If the defendant relies upon a plea of leave and license, he must prove either an express permission from the plaintiff to the defendant to come upon the land(b), or circumstances from which such a permission may fairly be implied(c). If, after a parol license to use a way has been granted, the licensor locks a gate across the way, this is a revocation of the license, and the licensee cannot lawfully break open the gate to use the way(d). A licensee can of course, take no better title or authority than the licensor himself possesses; and, therefore, if one tenant in common gives to the defendant license or permission to dig and carry away soil, or brickearth, or turf, from the estate holden in common, this will give the defendant no right or title as against the other co-tenant in common, and will afford no answer to an action brought by the latter for a trespass(e). If the license or permission of the wife, daughter, or servantof the plaintiff has been obtained by the defendant, this will be no evidence of a license from the plaintiff, unless the surrounding circumstances show that the wife, daughter, or servant had the plaintiff's express or implied authority to grant the license(f). Under a general plea of leave and license, the defendant is bound to prove a

(y) Cocker v. Crompton, 1 B. & C. 491. Lemprière v. Humphrey, 3 Ad. & E. 186. (z) Harvey v. Brydges, 14 M. & W. 441; 1 Exch. 261.

(a) Phythian v. White, 1 M. & W. 223.

(b) Kavanagh v. Gudge, 7 M. & Gr. 316.

(c) Ditcham v. Bond, 3 Campb. 524. Martin . Houghton, 45 Barb. (N. Y.) 258.

(d) Hyde v. Graham, 32 Law J., Exch. 27. See Jamieson v. Milleman, 3 Duer (N. Y.), 255, (e) Wilkinson v. Hagarth, 12 Q. B. 846.

(ƒ) Tayler v. Fisher, Cro. Eliz. 246. Holdringshaw v. Rag, ib. 876.

license co-extensive with all the acts of which the plaintiff complains; for if some of those acts are not covered and authorized by the license, the plaintiff will be entitled to damages in respect of them. A license to a defendant to have the key of a house, and to enter it when he pleases, will not authorize the defendant to enter the house otherwise than by the door, in the ordinary way. If, therefore, the defendant, having lost the key, enters the house by a window, he commits a trespass; and if evil-disposed persons, following his example, get into the house through the same window, and rob the house, the defendant will be responsible for the damage done(g).

Where a man is licensed to do a thing, it necessarily implies that he may do everything without which the thing authorized to be done cannot be done (ante, pp. 104, 105). If, therefore, the plaintiff has authorized the defendant to sell furniture and effects in the plaintiff's house, the license extends to all such assistants as may be necessary to enable the defendant to effect the sale and remove the goods(h). A plea of leave and license is not supported by proof that the plaintiff sold to the defendant certain goods and chattels which were deposited on the plaintiff's premises, and that the defendant entered upon the premises to remove the goods, for there is no implied authority to a purchaser to enter upon the vendor's land and help himself to the goods. There must be an express agreement to that effect(i).

A license obtained by wilful misrepresentation and deceit is a mere nullity, and will not justify or excuse a trespass by a defendant who was a party to the misrepresentation(). And if there has been a mistake and misunderstanding between the parties without fraud, the license will be a nullity(), but the misunderstanding will go in reduction of damages in an action for the unintentional trespass. Under a replication denying the fact of the license, the plaintiff may prove that it was revoked, with notice to the defendant prior to the commis

(g) Ancaster v. Milling, 2 D. & R. 714.

(h) Dennett v. Grover, Willes, 195.

(i) Williams v. Morris, 8 M. & W. 488. McLeod v. Jones, 105 Mass. 403. A sale of chattels, which are at the time upon the land of the seller, will authorize an entry upon the land to remove them, if by the express or implied terms of the sale, that is the place where the purchaser is to take them. Id. Nettleton v. Sikes, 8 Metc. 34. Giles v. Simonds, 15 Gray, 441. Drake v. Wells, 11 Allen, 441. McNeal v. Emerson, 15 Gray, 384. Wood v. Mauley, 11 Ad. and El. 34. See Long v. Buchanan, 27 Md. 502. A license is implied because it is necessary in order to carry the sale into complete effect, and is therefore presumed to have been in cor templation of the parties. It forms part of the contract of sale. McLeod v. Jones, 105 Mass. 403. But there is no such inference to be drawn when the property, at the time of sale, is not apon the seller's premises, or where by the terms of the contract it is to be delivered elsewhere. Id.

(k) Roper v. Harper, 4 B. N. C. 20.

(1) Bridges v. Blanchard, 1 Ad. & E. 551. See Davies v. Marshall. 10 C. B., N. S. 697.

sion of the trespass(m). A parol license to enjoy an easement over or upon the soil and freehold of another is at once determined, as we have seen, by a transfer of the property, and the grantee of the license is consequently a trespasser, if he afterwards enters upon the land in the exercise and enjoyment of his supposed right, although he has received no notice of the transfer(n).

448 Proof of pleas of justification.-If the defendant has pleaded a plea justifying the trespass in the exercise of a privilege, profit á prendre, or easement, he must prove his right or title to the enjoyment of the incorporeal hereditament, either under an express or implied grant (ante, p. 101, et. seq.), or by prescription (ante, p. 133, et. seq.); and he must make out his justification as to that part of the close named in the declaration in which the trespass is proved to have been committed(); but it is not necessary, in support of pleas of user and enjoyment under the Prescription Act, to show an actual exercise of the right in the very spot, when it is parcel of a larger tract. It is sufficient to show user and enjoyment over the larger tract under such circumstances, that it may reasonably be inferred that the right extended over the whole of the larger tract, including the spot in question(p).

449 Proof of right of way-Pleas of justification.-If the defendant justifies in the exercise of a right of way (ante, pp. 104, 105, 143, 164, 169), he must prove a right co-extensive with the right claimed(g). If he proves a larger and more extensive right than he claims, but the right claimed is included in the more extended right proved, there is, as we have seen, no variance. Thus a plea of a right of foot-way is supported by proof of a right of way for carts or carriages, as a carriageway always includes a foot-way(). A plea of a right of way in the occupiers of certain premises may be established by proof that the defendant is seised of a freehold or copyhold estate in such premises, and that they are in the occupation of a tenant to whom he has demised them; for a landlord may be constructively an occupier so as to give him a right to use a way appurtenant to his own premises, although those premises are in the possession of a tenant. The landlord of a tenement to which a right of way is appurtenant may, while the tenement is in the occupation of a tenant, lawfully use the way to remove

Wood v. Wedgewood, 1 C. B. 277.

(m) Adams v. Andrews, 15 Q. B. 291. Barnes v. Hunt, 11 East, 451; ante, pp. 98, 99.
(n) Wallis v. Harrison, ante, p. 120.
(0) Bassett v. Mitchell, 2 B. & Ad. 105.
(p) Peardon v. Underhill, 16 Q. B. 123.
(q) Brunton v. Hall, 1 Q. B. 792.

(r) Davies v. Stephens, 7 C. & P. 571; ante, pp. 181, 182.

an obstruction, and to assert the right of way, or to view waste, or to demand rent, or for any other purpose connected with the exercise of his rights or duties as a landlord(s).

A justification of trespass, under a custom for all the inhabitants of a particular town to walk and ride over a close of arable land at all seasonable times in the year was held bad, because it appeared that the trespass was committed when the corn was standing, and it was held that "seasonable time" was partly a question of law and partly of fact(t).

450 Proof of deviations extra viam in the case of private ways.—When a way has once been assigned, or a prescriptive right to go in any particular direction established, the course or direction of the way cannot be altered by one party without the consent of the other. A grant of a right of way to and from a particular dwelling-house, coach-house, and stables, will not enable the defendant to go to and from an adjoining spot which he can reach from the same line of road. If there be a grant of a way to a particular corner of a field, the grantee can go to no other part(u). Where T had a way over the close of H, and H ploughed and sowed his close, leaving a way in an unploughed place in the same close, it was held that T was not bound to use the new unploughed way, but was entitled to go where the ancient way was. H may, however, use the new way as long as it lies open; but if the owner afterwards stops up the new way, he has no right to remove the obstruction and pass along it(x). In the case of a public highway out of repair, passengers have a right to go upon the adjoining land, but this is not the case with a private way. If the passenger deviates, he commits a trespass(y).

If a man has a right of way to a close called A, he cannot justify using the way to go to A, and from thence to another close of his own adjoining to A(z).

(8) Proud v. Hollis, 1 B. & C. 9; 2 D. & R. 31. A defence to an action of trespass quare clausum fregit may be sustained by proof of a right of way over the premises from the plaintiff's grantor, before the conveyance of the premises to the plaintiff. Walker v. Newhouse, 14 Mo. 373.

(t) Bell v. Wardell, Willes, 202. Mounsey v. Ismay, ante, p. 122.

(u) Henning v. Burnett, 8 Exch. 193. Skull v. Glennister, 33 Law J., C. P. 185. See Davenson v. Lamson, 21 Pick. 72; Shroder v. Brenneman, 23 Penn. St. 348.

(x) Horne v. Widlake, Yelv. 141; Noy, 128. Reignolds v. Edwards, Willes, 283. See ante, p. 164.

(y) Taylor v. Whitehead, 2 Doug. 747. Bullard v. Harrison, 4 M. & S. 393. Miller v. Bristol, 12 Pick, 550. Holmes v. Serly, 19 Wend. 507. Capers v. M'Kee, 1 Strobh. 168. Williams v. Safford, 7 Barb. 309. Bakeman v. Talbot, 31 N. Y. 366, 372. Campbell v. Race, 7 Cush. 408. State v. Northumberland, 44 N. H. 631.

(*) 1 Roll. Abr. 391. (CHIMIN. PRIVATE) cited Allan v. Gomme, 11 Ad. & E. 770.