The Thorns Case

A man brought a writ of Trespass quare vi et armis clausum fregit, etc. et herbam suam pedibus conculcando consumpsit [Translation: a man trespassed onto another man’s land and trampled his crops with his feet] and alleged the trespass in 5 acres and the defendant said, as to the coming, etc. And as to the trespass in the 5 acres, not guilty and, as to the trespass in the 5 acres, that the plaintiff ought not to have an action for he says that he [the defendant has an acre of land on which a thorn hedge grows, adjoining the said 5 acres, and that he [the defendant], at the time of the supposed trespass, came and cut the thorns, and that they, against his will, fell on the said acres of the plaintiff, and that he [the defendant] came freshly on the said acres and took them, which is the same trespass for which he has conceived this action. And on this they demurred and it was well argued, and was adjourned.

And now Catesby says: Sir, it has been said that, if a man does some act, even if it be lawful, and by this act tort and damage are done to another against his will, yet, if he could by any means have eschewed the damage, he shall be punished for this act. Sir, it seems to me that the contrary is true, and, as I understand, if a man does a lawful act and thereby damage comes to another against his will, he shall not be punished. Thus, I put the case that I drive my cattle along the highway, and you have an acre of land lying next the highway, and my beasts enter your land and eat your grass, and I come freshly and chase them out of your land; now here, because the chasing out was lawful and the entry on the land was against my will, you shall not have an action against me. no more shall you have an action here, for the cutting was lawful and the entry on the land was against my will, and so the re-taking was good and lawful. And, Sir, I put the case that I cut my trees and the boughs fall on a man and kill him; in this case I shall not be attained as of felony, for my cutting was lawful and the falling on the man was against my will. No more here, therefore, etc.

Fairfax: It seems to me that the contrary is true and I say that there is a difference where a man does a thing from which felony ensues and one from which trespass ensues; for in the case which Catesby puts there was no felony, since felony is of malice propense and, as the act was against will, it was not animo felonico. But if one cuts his trees and the boughs fall on a man and hurt him, in this case he shall have an action of Trespass. So, too, Sir, if a man shoots at the butts and his bow trembles in his hands and he kills a man ipso invito, this is no felony, as has been said. But if he wounds a man by his shooting, he shall have a good action of Trespass against him, and yet the shooting was lawful and the tort that the other had was against his will. And so here.

Pigot: To the same intent. I put the case that I have a mill and the water which comes to my mill runs past your land, and you have willows growing by the water, and you cut your willows and against your will they fall in the water and stop the water so that I have not sufficient water for my mill, in this case I shall have an action of Trespass, and yet the cutting g was lawful and the falling was against my will. And so if a man has a fish-pond in his manor and he empties the water out of the pond to take the fishes and the water floods my land, I shall have a good action, and yet the act was lawful.

Yonge: The contrary seems to me to be true; and in such a case, where a man has dampnum absque injuria, he shall have no action, for if he has no tort he has no reason to recover damages. So in this case, when he came on to his close to take the thorns which had fallen on to it, this entry was not tortious, for when he cut them and they fell on his close ipso invito, the property in them was in him and thus it was lawful for him to take them out of his close; wherefore, notwithstanding that he has done damage, he has done no tort.

Brian: I think the contrary. To my intent, when any man does an act, he is bound to do it in such manner that by his act no prejudice or damage is done to others. Thus, in a case where I am building a house and, while the timber is being put up, a piece of it falls on my neighbour’s house and damages it, he shall have a good action, and yet the building of the house was laful and the timber fell invito. So, too, if a man makes an assault upon me and I cannot avoid him, and in my own defence I raise my stick to strike him, and a man is behind me and in raising my stick I wound him, in this case he shall have an action against me, and yet the raising of my stick to defend myself was lawful and I wounded him me invito. So in this case.

Littleton, J. To the same intent. If a man suffers damage, it is right that he be recompensed; and to my intent the case which Catesby has put is not law; for if your cattle come on to my land and eat my grass, notwithstanding you come freshly and drive them out, it is proper for you to make amends for what your cattle have done, be it more or less. . . . And, Sir, if it were law that he could enter and take the thorns, by the same reasoning, if he cut a great tree, he could come with his carts and horses to carry off the tree, which is not reason, for peradventure he has corn or other crops growing, etc. No more here may he do it, for the law is all one in great things and in small and so, according to the amount of the trespass, it is proper that he should make amends.

Choke, C.J. I think the same; for when the principal thing is not lawful, then the thing which depends upon it is not lawful. For when he cut the thorns and they fell on to my land, this falling was lawful, and then his coming to take them away was not lawful. As to what has been said that they fell ipso invito, this is not a good plea; but he should have said that he could not do it in any other manner or that he did all that was in his power to keep them out; otherwise he shall pay damages. And, Sir, if the thorns or a great tree had fallen on his land by the blowing of the wind, in this case he might have come on the land to take them, since the falling had then been not his act, but that of the wind.