clared that on every trial the jury may give a general verdict of guilty or not guilty upon the whole matter in issue upon the indictment or information, and shall not be required or directed to find the defendant guilty merely on proof of the publication, though the court might give its opinion and directions "in like manner as in other criminal cases." This act, though in terms applicable only to criminal prosecutions, has been extended by the English courts to civil cases.307

Statutes and constitutional provisions similar in tenor, and in terms giving to the jury the right to determine the law and the fact, are in force in many states.308 In some the English view has been adopted,300 though it seems better to limit their operation to criminal prosecutions.310 Hence, "where the words are unambiguous and clearly libellous on their face, incapable of an innocent meaning, and the case free from any evidence tending to change their natural meaning, it is both the right and duty of the court in civil actions to instruct the jury as matter of law that they are defamatory."

"311

intent with which it was written, which was a question of fact, and hence must be found by the jury. See Com. v. Anthes, 5 Gray (Mass.) 185, 213.

307 Cox v. Lee, L. R. 4 Exch. 284, 38 L. J. Exch. 219, 21 L. T. Rep. N. S. 178; Baylis v. Lawrence, 11 Adol. & El. 920, 9 L. J. Q. B. 196, 4 Jur. 652, 39 E. C. L. 485. Cf. Campbell v. Spottiswoode, 3 B. & S. 769. But it is considered that the statute has not affected the power of the court to act in cases where the words are neither intrinsically libelous nor capable of bearing the meaning ascribed to them by innuendo. Capital & Counties Bank, Ltd., v. Henty, 7 App. Cas. 741, 47 J. P. 214, 52 L. J. Q. B. 232, 47 L. T. Rep. N. S. 662, 31 Wkly. Rep. 157.

808 See Const. N. J. art. 1, § 5; Drake v. State, 53 N. J. Law, 23, 20 Atl. 747; Code Cr. Proc. N. Y. § 418, and cases hereafter cited. 309 Shattuck v. Allen, 4 Gray (Mass.) 540, semble; Twombly v. Monroe, 136 Mass. 464. Cf. Heller v. Pulitzer Pub. Co., 153 Mo. 205, 54 S. W. 457.

310 Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; Hunt v. Bennett, 19 N. Y. 173; Pittock v. O'Niell, 63 Pa. 253, 3 Am. Rep. 544.

311 Smith v. Stewart, 41 Minn. 7, 8, 42 N. W. 595. To the same effect, Dowie v. Priddle, 216 Ill. 553, 75 Pac. 243, 3 Ann. Cas. 526; Hunt v. Bennett, 19 N. Y. 173; Gregory v. Atkins, 42 Vt. 237.

75. Trespass as a form of action has already been considered.1 As a substantive tort, it consists in the wrongful and forcible disturbance of another's possession.

Trespass to Land

This is committed when there has been an unlawful entry. In its simplest form, it consists of a physical entry upon the soil itself. As thereby a legal right has been infringed, the law will infer some damage-"if nothing more, the treading down the grass or the herbage." Thus one may become a trespasser by walking or riding across the land, or by flooding it," or by casting objects thereon. So

1 See supra, p. 45.

6

2 See Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255, 259, 49 Am. Dec. 239; DOUGHERTY v. STEPP, 18 N. C. 371, Chapin Cas. Torts, 179; Norvell v. Gray's Lessee, 1 Swan (Tenn.) 96, 103.

3 DOUGHERTY v. STEPP, 18 N. C. 371, 372, Chapin Cas. Torts, 179, per Ruffin, C. J. To the same effect, Empire Gold Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406, 7 Pac. 810; Brown v. Perkins, 1 Allen (Mass.) 89; Brown v. Manter, 22 N. H. 468, 472.

4 Hatch v. Donnell, 74 Me. 163; DOUGHERTY v. STEPP, 18 N. C. 371, Chapin Cas. Torts, 179.

5 Conner v. Woodfill, 126 Ind. 85, 25 N. E. 876, 22 Am. St. Rep. 568; Mairs v. Manhattan Real Estate Ass'n, 89 N. Y. 498; Wheeler v. Norton, 92 App. Div. 368, 86 N. Y. Supp. 1095.

1 • Ex parte Birmingham Realty Co. (1913) 183 Ala. 444, 63 South. 67; Clark v. Wiles, 54 Mich. 323, 20 N. W. 63; Hay v. Cohoes Co.,

an unwarranted entry by cattle is a trespass,' and the owner is responsible, irrespective of the care which he has exercised in endeavoring to keep them at home, unless the cattle, while being driven along a highway, have casually wandered on unfenced land bounding thereon, for in that case his negligence must be established."

At common law, with the exception just mentioned,1o it mattered not that the premises were unfenced. "If a man's

2 N. Y. 163, 51' Am. Dec. 279; McCahill v. John H. Parker Co., 49 Misc. Rep. 258, 97 N. Y. Supp. 398; Newsom v. Anderson, 24 N. C. 42, 37 Am. Dec. 406.

7 But, if a dog enters without the consent of its master, it is no trespass. Brown v. Giles, 1 C. & P. 118, 12 E. C. L. 79. Reasons which have been assigned in the case of dogs and cats are: First, "the difficulty or impossibility of keeping" them "under restraint; secondly, the slightness of the damage which their wandering ordinarily causes; thirdly, the common usage of mankind to allow them a wider liberty; and, lastly, their not being considered in law so absolutely the chattels of the owner as to be the subject of larceny." Read v. Edwards, 17 C. B. N. S. 245, 260, per Willes, J. "Yet if the owner trespass, and while on the land his dog, unbidden and against his will, does mischief, that action [trespass qu. cl. freg.] will lie for the injury." Woolf v. Chalker, 31 Conn. 121, 129, 81 Am. Dec. 175, per Butler, J. So if the dog alone trespass, and in fact do damage, proof of scienter is unnecessary in an action brought by the owner of the close. The ground of liability here rests upon the breach of the close, and the damage is alleged by way of aggravation. Chunot v. Larson, 43 Wis. 536, 28 Am. Rep. 567, note. Cf. Van Leuven v. Lyke, 1 N. Y. 515, 49 Am. Dec. 346; Buchanan v. Stout, 139 App. Div. 204, 123 N. Y. Supp. 724; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99 (trespassing horse). In Sanders v. Teape, 51 L. T. Rep. N. S. 263, proof of scienter was deemed requisite, but it does not appear that plaintiff was the owner of the close.

8 See McBride v. Lynd, 55 Ill. 411; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255, 49 Am. Dec. 239; Rossell v. Cottom, 31 Pa. 525. There can necessarily be no liability where the cattle have been driven upon plaintiff's land by a stranger. Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377.

Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377; Tillett v. Ward (1882) L. R. 10 Q. B. 17.

10 But this exception does not include a case where, after entering upon a close bounding on the highway, the cattle proceed into another adjoining thereto. Lord v. Wormwood, 29 Me. 282, 1 Am. Rep. 586; McDonnell v. Pittsfield & N. A. R. Corp., 115 Mass. 564; Wood v. Snider, 187 N. Y. 28, 79 N. E. 858, 12 L. R. A. (N. S.) 912.

land be not inclosed, the law encircles it with an imaginary inclosure, to pass which is to break and enter his close. The mere act of breaking through this imaginary boundary constitutes a cause of action, as being a violation of the right of property." 11 In some of the states, however, it has been held that this doctrine could not be applied to conditions in this country,12 and in others, statutory changes have been made.18

The entry need not be upon the soil, for by the ancient maxim, which has been applied in such cases, “cujus est solum ejus est usque ad cælum et ad inferos." 14 "The surface of the ground," it is said, “is a guide, but not the full measure, for within reasonable limitations land includes not only the surface, but also the space above and the part beneath." 15 Hence it has been held that the tort may be committed, not only by interfering with minerals,10 but by such acts as thrusting an arm across the boundary," or hanging a wire or structure over the land.19

18

11 Agnew v. Jones, 74 Miss. 347, 352, 23 South. 25, per Stockdale, J. To the same effect, Wells v. Howell, 19 Johns. (N. Y.) 385, Bileu v. Paisley, 18 Or. 47, 21 Pac. 934, 4 L. R. A. 840.

12 Mobile & O. R. Co. v. Williams, 53 Ala. 595; Wagner v. Bissell, 3 Iowa, 396; Pace v. Potter, 85 Tex. 473, 22 S. W. 300. Contra, where the cattle are not running at large, but are knowingly driven upon another's land. Harrison v. Adamson, 76 Iowa, 337, 41 N. W. 34; Poindexter v. May, 98 Va. 143, 34 S. E. 971, 47 L. R. A. 588. 13 E. g., Consol. Laws N. Y. c. 62, § 361, as amended by Laws 1911, c. 86.

14 "He who owns the soil also owns to the heavens and to the depths."

15 Butler v. Frontier Telephone Co., 186 N. Y. 486, 491, 79 N. E. 716, 11' L. R. A. (N. S.) 920, 116 Am. St. Rep. 563, 9 Ann. Cas. 858, per Vann, J.

16 Maye v. Yappen, 23 Cal. 306; United States v. Magoon, 3 McLean, 171, Fed. Cas. No. 15.707; Morgan v. Powell, 2 G. & D. 721.

17 HANNABALSON v. SESSIONS, 116 Iowa, 457, 90 N. W. 93, 93 Am. St. Rep. 250, Chapin Cas. Torts, 180. To the same effect, Ellis v. Loftus Iron Co., L. R. 10 C. P. 10, 44 L. J. C. P. 24, 31, L. T. Rep. N. S. 483, 23 Wkly. Rep. 246, where defendant's horse stretched its neck across the boundary.

18 See Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716, 11 L. R. A. (N. S.) 920, 116 Am. St. Rep. 563, 9 Ann. Cas. 858.

19 Esty v. Baker, 48 Me. 495 (shaft); Smith v. Smith, 110 Mass.

Is it to be concluded from this that one is a trespasser if he passes over another's land in a balloon or airship? In 1815 Lord Ellenborough expressed a doubt whether any action would lie.20 Later it was observed by Justice Blackburn: "I understand the good sense of that doubt, though not the legal reason of it." 21 Direct judicial authority is lacking.22 It has been urged that the air should be treated like the waters of the open sea; but the analogy is imperfect, for there is no paramount sovereignty over the latter, as distinguished from that which exists over the individual navigator, while it cannot be questioned that the state may exercise authority over the atmosphere above its soil. It would therefore seem that it is more like the case of a navigable lake or river wholly within the borders of a single country. But, irrespective of the correctness of the analogy, the doctrine of free passage-i. e., that aerial flight is not per se trespass-would seem in accord with sound policy.

Then the question arises as to the liability for damage actually suffered. Is proof of negligence essential? If articles have been dropped, we have a recognized case of trespass. Suppose, however, that the soil is untouched, as if cattle are injured by an anchor dragged through the air. The fact that a technical entry may not constitute trespass is not inconsistent with absolute liability for actual damage.23 This means that the aviator proceeds at his peril. The law may give him a license to pass, but not to do injury. But the subject may be presented in so many varying phases that adequate discussion within the compass of this

302 (eaves of barn). Cf. Bybee v. State, 94 Ind. 443, 48 Am. Rep. 175 (passageway); Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373 (bay window). And see supra, p. 71.

20 Pickering v. Rudd, 1 Stark, 56, 4 Campb. 219, 16 Rev. Rep. 777, 2 E. C. L. 32.

21 Kenyon v. Hart, 6 B. & S. 249, 252, 11 Jur. N. S. 602, 34 L. J. M. C. 87, 11 L. T. Rep. N. S. 733, 13 Wkly. Rep. 406, 118 E. C. L. 249.

22 Cf. Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234; Wandsworth v. United Tel. Co., 13 Q. B. D. 904, 919, 48 J. P. 676, 53 L. J. Q. B. 444, 51 L. T. Rep. N. S. 148, 32 Wkly. Rep. 776.

23 As in the case of entry by a dog or cat.