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Published: Wed, 07 Mar 2018

Smith v. Stone [1647] Style 65

Involuntary Trespass

Facts

Smith (S) brought an action of trespass against Stone (D) after D was carried onto S’s land by force, and violence of others, and was not there voluntarily. D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D.

Issue

D claimed that he had a special plea of justification for the trespass, because he was carried onto S’s land by force, and violence of others, making the trespass of S’s land involuntary

Held
An involuntary trespass is not actionable. Only the trespass of the party which D onto the land was actionable. The court compared the present circumstance to a hypothetical situation involving a person driving cattle onto someone else’s land:

“as he that drives my cattel into another mans land is the trespassor against him, and not I who am owner of the cattell.”


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