29 Vt. 501 | Vt. | 1857
The opinion of the court was delivered by
The evidence in this case showed that the plaintiff gave the defendant license to pass and repass on his field and through the bars until he could obtain a public highway.
This being an action of trespass, the answer to this license, which, unanswered, is a bar to the action, was, that the defendant did not keep up the bars, that he left them open during the day, and also the night, and that by reason thereof damage was done by cattle running in the highway.
The only question to be determined is whether the omission to keep up the bars will deprive the party of the benefit of the license. There is nothing in the case to show that the license was given upon any express condition to be void if the bars were not properly kept up. The question must be determined upon general principles.
The law upon this subject is fully illustrated in all its bearings in the Six Carpenters’ Case, 8 Coke 146 a; S. C. 1 Smith’s Lead. Cases 62, and English and American notes.
The abuse of an authority in law will render the party a trespasser ab initio. But this abuse must be something beyond mere non feasance. It must be a positive and active wrong, and of such a character as to fairly justify the implication that the original entry was for the purpose of committing the wrong, and not bona fide made under the authority which the law gave, and for the purpose for which the law gave it; Stoughton v. Mott, 25 Vt. 668.
If this had been an authority in law merely, as the right of one to enter to distrain or attach property, it would be going further than any of the cases have yet gone, and quite beyond the true principle of the later decisions upon this subject, to hold that such an omission as the one complained of in this case will render the officer a trespasser ab initio. It would be strange to conclude that because an officer in making an attachment of personal property upon premises left the bars open, that he entered for that
But this is not a license iu law. It is a license in fact, the permission of the party. And in such cases the law is settled beyond all question, that no abuse of the license will render the party a trespasser ab initio. He may be liable for the wrong, but if he had permission to enter, and kept within the range of his license, no abuse of the license will revoke it, or deprive the party of its protection.
The party, by the abuse of the license in fact, does not becohie a trespasser, hut may be liable for the wrong in an action upon the case.
Judgment reversed and case remanded.