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Page:Harvard Law Review Volume 1.djvu/131

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person who has neither the possession nor the right of possession. Hence, it is not a trespass, the essence of which is always a wrongful entry, and which is always an injury to the possession. It always consists in injuring or destroying something upon the land which belongs to the owner of the fee.

A nuisance to land is any injury to it which is committed without making an entry upon the land, and which, for that reason, is not a trespass. Any injury to incorporeal property is a nuisance, as a trespass can be committed only against corporeal things. Therefore, an act which would be a trespass to a corporeal thing will be only a nuisance to an incorporeal thing. For example, an obstruction by A of a right of way which B has over the land of C, is a trespass to C, but only a nuisance to B.

Over all the foregoing torts, namely, waste, trespass to land, and nuisance either to land or to incorporeal property (including infringements of such lawful monopolies as patents and copyrights), equity exercises a jurisdiction of greater or less extent; and it may be stated as a general rule, that, whenever the injury caused by a tort belonging to either of these classes will be of a serious and permanent character, equity will interfere to prevent it; but that for injuries which are only technical, or slight, or temporary, or occasional, the person injured will be left to his remedy at law. Thus, the injury caused by waste is necessarily permanent, being an injury to the inheritance; and in the great majority of cases the injury is of a substantial character. Accordingly, equity interferes to prevent waste almost as of course. If, however, the acts complained of, though technically waste, do not in fact injure the land,—still more, if they actually improve it,—the remainderman or reversioner will be left to his remedy at law.

Acts which will constitute waste when committed by the owner of a particular estate, will, of course, be (not waste, but) trespass when committed by a stranger; but such acts clearly ought to be prevented equally in either case. Accordingly, the rule now is, that equity will interfere to prevent destructive trespass to land, or trespass in the nature of waste; but it will not interfere to prevent trespasses which injure only the present possession; and, indeed, the first instance in which equity interfered to prevent destructive trespass was in the time of Lord Thurlow.[1]

  1. Flamang’s case, cited in Mitchell v. Dors, 6 Ves. 147, in Hanson v. Gardiner, 7 Ves. 305, 308, in Smith v. Collyer, 8 Ves. 89, and in Thomas v. Oakley, 18 Ves. 184, 186.