Viall v. Carpenter , 82 Mass. 285 ( 1860 )

Bigelow, C. J.

This case does not come within the provisions of Rev. Sts. c. 105, § 12, relating to casual and involuntary trespasses on lands. That statute was intended to apply to cases where trespasses had been committed by reason of a casualty, or without the knowledge or assent of the trespasser, as where beasts escape from the land of one person into that of another without any act on the part of their owner. But in the present case the tortious acts were done, not through accident or negligence, or without the exercise of volition by the defendant; they were done designedly and under a claim of right. To call such acts casual and involuntary is a contradiction in terms. Under a similar statute in England, St. 21 Jac. 1, c. 16, § 5, it has been held that a trespass committed by mistake is not within the terms of the statute, because the act was voluntary. In such case, the entry on the land, being intended, was deemed not to be within the statute, although it might have been made under an erroneous impression as to the right of the tortfeasor in the premises. Walgrace’s case, Noy, 12. Basely v. Clarkson, 3 Lev. 37. 1 Man. & Gr. 245 note. If a party enters on land ex intenlione, the law holds him responsible for all the consequences of his acts, and treats him as a wrongdoer, if he fails to justify his entry. It is only when by a casualty or without design he commits a trespass, that the law seeks to protect him from costs, if he seasonably tenders sufficient amends and disclaims all title to the premises upon which the unlawful entry was made.

Judgment affirmed.