§ 557. Use of Licenses in Cases of Trespass.—If a person has a valid license to do any act or series of acts upon the land of another, the existence of the

Illinois: Russell v. Hubbard, 59 Ill. 335 (to use wall as a partywall); modified, Kamphouse v. Gaffner, 73 Ill. 461; Woodward v. Seeley, 11 Ill. 157, 50 Am. Dec. 445.

Indiana: Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370 (not without placing the licensee in statu quo); Buck v. Foster, 147 Ind. 530, 62 Am. St. Rep. 427, 46 N. E. 920; Ferguson v. Spencer, 127 Ind. 66, 25 N. E. 1035; Messick v. Midland Ry. Co., 128 Ind. 81, 27 N. E. 719.

Iowa: Bush v. Sullivan, 3 G. Greene (Iowa), 344, 54 Am. Dec. 506; Beatty v. Gregory, 17 Iowa, 109, 85 Am. Dec. 546; Harkness v. Burton, 39 Iowa, 101; Vannest v. Fleming, 79 Iowa, 638, 19 Am. St. Rep. 387, 44 N. W. 906; Cook v. Chicago etc. Ry. Co., 40 Iowa, 451; Kipp v. Coenen, 55 Iowa, 63, 7 N. W. 417; Upton v. Brazler, 17 Iowa, 153.

Maine: Ricker v. Kelly, 1 Me. 117, 10 Am. Dec. 38. A later case holds that such license cannot operate as against subsequent vendees and their successors in interest: Seidenspargar v. Spear, 17 Me. 123, 35 Am. Dec. 234.

Maryland: Addison v. Hack, 2 Gill, 221, 41 Am. Dec. 421; Long v. Buchanan, 27 Md. 502, 92 Am. Dec. 653.

Massachusetts: Lambert v. Robinson, 162 Mass. 34, 44 Am. St. Rep. 326, 37 N. E. 753 (of personal property); Nettleton v. Sikes, 8 Met. 34; Claflin v. Carpenter, 4 Met. 580, 38 Am. Dec. 381.

Michigan: Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154, 19 N. W. 247 (coupled with an interest); Williams v. Flood, 63 Mich. 487, 30 N. W. 93.

Missouri: Boone v. Stover, 66 Mo. 430 (to mine); Gibson v. A. & M. Assn., 33 Mo. App. 180; House v. Montgomery, 19 Mo. App. 170; Baker v. Chicago etc. Ry. Co., 57 Mo. 265; Fuhr v. Dean, 26 Mo 116, 69 Am. Dec. 484.

Nevada: Lee v. McLeod, 12 Nev. 284; Evans v. Lee, 12 Nev.

393.

New Hampshire: Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Woodbury v. Parshley, 7 N. H. 237, 26 Am. Dec. 739. Later cases in this state hold that, though irrevocable between the original parties, it would not be as between their vendees or successors in interest: Carleton v. Redington, 21 N. H. 291. But see Houston v. Laffee, 46 N. H. 505; Batchelder v. Hibbard, 58 N. H. 269.

New Jersey: Veghte v. Raritan Power Co., 19 N. J. Eq. 142; Lawrence v. Springer, 49 N. J. Eq. 289, 31 Am. St. Rep. 702, 24

license and its proper exercise serves as a justifica. tion for an entry upon the land of the licensor for the purpose of doing the things authorized to be done. One who has the right to enter upon the land of another may use such force as may be reasonably necessary to accomplish his purposes, but will render himself liable if he uses excessive or unnecessary force.178 And if the license is one which may be properly revoked, and is so revoked by the licensor, the licensee becomes liable in trespass if he attempts Atl. 933 (sustains this view by inference); Morton Brewing Co. v. Morton, 47 N. J. Eq. 158, 20 Atl. 286.

New York: Parkhurst v. Van Cortland, 14 Johns. 15, 7 Am. Dec. 427.

Ohio: Wilson v. Chalfant, 15 Ohio, 248, 45 Am. Dec. 574; Hornbeck v. Railroad Co., 20 Ohio St. 81; Meek v. Breckenridge, 29 Ohio St. 642.

Oregon: Coffman v. Robbins, 8 Or. 279; Curtis v. Le Grande Water Co., 20 Or. 34, 23 Pac. 808, 25 Pac. 378; McBroom v. Thompson, 25 Or. 559, 42 Am. St. Rep. 806, 37 Pac. 57.

Pennsylvania: Le Fevre v. Le Fevre, 4 Serg. & R. 241, 8 Am. Dec. 696 (a leading case); Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203; Dark v. Johnston, 55 Pa. St. 164, 93 Am. Dec. 732; Rerick v. Kern, 14 Serg. & R. 267, 16 Am. Dec. 497 (mill erected under license); Pierce v. Cleland, 133 Pa. St. 189, 19 Atl. 352.

Rhode Island: Foster v. Browning, 4 R. I. 53, 67 Am. Dec. 505. Teras: Risien v. Brown, 73 Tex. 135, 10 S. W. 661 (to build a dam); Thomas v. Junction City Irr. Co., 80 Tex. 550, 16 S. W. 324.

Vermont: Clark v. Glidden, 60 Vt. 702, 15 Atl. 358; Hall v. Chaffee, 13 Vt. 157 (an instructive case); Olmstead v. Abbott, 61 Vt. 281, 18 Atl. 315.

Virginia: Lowe v. Miller, 3 Gratt, 205, 46 Am. Dec. 188 (executed license to grow crops).

Wisconsin: Hazleton v. Putnam, 3 Pinn. 107, 3 Chand. (Wis.) 117, 54 Am. Dec 158.

Wyoming: Metcalf v. Hart, 3 Wyo. 513, 31 Am. St. Rep. 122, 27 Pac. 900, 31 Pac. 407.

178 Lambert v. Robinson, 162 Mass. 34, 44 Am. St. Rep. 326, 37 N. E. 753; Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202.

180

further to act upon the license.179 If one has a license to erect buildings upon the land of another, he cannot be held liable in trespass if he goes upon the land to remove the same. This may be done peaceably, but he will render himself liable if he uses more force than is necessary to accomplish his purpose.181 The licensee is protected from liability for all acts, which would otherwise be a trespass but for the license, committed prior to the revocation of a license which is revocable. 182 But if the licensee commits acts subsequent to a valid revocation, he renders himself liable in trespass.183 In cases of irrevocable licenses, if the licensor in any wise interferes with the licensee in the enjoyment of his rights, he may become liable in trespass.

184

179 Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203.

180 Doty v. Gorham, 5 Pick. 487, 16 Am. Dec. 417; Bishop v. Babcock, 22 Vt. 295; Pratt v. Ogden, 34 N. Y. 20; Marston v. Gale, 24 N. H. 176; Schoonover v. Irwin, 58 Ind. 287.

181 Churchill v. Hulbert, 110 Mass. 42, 14 Am. Rep. 578; Hamilton v. Wendolf, 36 Md. 301, 11 Am. Rep. 491.

182 Marston v. Gale, 24 N. H. 177; Owens v. Lewis, 46 Ind. 489, 15 Am. Rep. 295.

183 Lockhart v. Geir, 54 Wis. 133, 11 N. W. 245.

184 Wilson v. Chalfant, 15 Ohio, 248, 45 Am. Dec. 574.

CHAPTER XXXV.

INJURY TO CONSTITUTIONAL AND COMMON-LAW RIGHT OF POSSESSING AND PROTECTING REAL PROPERTY BY DEPRIVING ONE OF ACTUAL POSSESSION-FORCIBLE ENTRY AND DETAINER.

§ 558. Forcible entry and detainer-History-Elements of the wrong.

§ 559. Same-Modern modifications and application. § 560. Especially of unlawful detainer.

561. Remedies.

§ 558. Forcible Entry and Detainer-History-Elements of the Wrong.-Besides the right of exclusion the right of possession, with which the former is often confused, may be injured by force. At common law the various methods by which the right of possession could be injured were grouped under the general term of ouster, and this was divided into disseisin, abatement, intrusion, discontinuance and deforcement. The refinements of the feudal system made discriminations between the rights of those who were deprived of possession being enjoyed by them and of those who, while having a right to the enjoyment of possession, had never actually occupied the lands. Disseisin was the wrong to the rights of one in possession; abatement and intrusion were unlawful entries and occupations before enjoyment of possession by the one entitled; discontinuance and deforcement were lawful entries and an occupation become subsequently unlawful, by a holding over.

The reasons for the discriminations having been done away with at the present time, we have but the

two modes of wrongs to possession-by wrongful entry and dispossession, and by rightful entry with a wrongful holding over. The first mode, constituting the old offense of disseisin, is always accompanied with force, and in fact is begun by a trespass. So that an action of trespass will always lie, to which may be joined, as an incident and element of damage, the deprivation of possession. The second mode of dispossession, corresponding to discontinuance and deforcement, may be with force or without it, but as the original entry is always lawful, and the occupancy apparently so, there can be no liability in trespass.

1

The original remedies in all cases of ouster were by the various writs of entry, or real actions, and by the action of ejectment, and also by the personal entry of the one ousted where he had the right of possession. This last remedy being the most efficacious one, it came into general use, even among those who had not the right, and was enforced with violence where necessary. Proving to be of such a disturbing nature, and conducive to lawlessness, rather than lawfulness, an instrument of injustice at the hands of strong neighbors, and not a means of accomplishing and establishing the right, the statute of 2 Edward III was passed, making any entry with force upon lands of another a criminal offense.3 Later on, by the statute of 5 Richard II, chapter 7, it was provided that none should "make entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner," and that the offenders should be

1 Ante, sec. 525.

2 3 Blackstone's Commentaries, 117, 118.

3 1 Hawkins' Pleas of the Crown, c. 28, sec. 5