LEGAL BASIS OF TRESPASS ACTION 67 



can be recovered in trespass if the timber taken belonged 

 to the trespasser 1 or there was no actual injury. - The 

 malice required in an action of trespass need not be ill-will 

 or hatred; it is only necessary that the wrongful act be in- 

 tentional and committed in known \iolation of the real 

 owner's rights. :! The fact that the trespass was done with 

 evil purpose may afford ground for punitive, or exemplary, 

 damages but the burden of proving wilful ness is upon the 

 plaintiff. ' 



A l)o na Jidc claim of right "' is no defense to an action for 

 a timber trespass, even though the mistake in law or fact 

 may have resulted from statements or acts of the plaintiff, 

 provided such statements or acts were not intentionally 

 directed toward such result. (i In some jurisdictions it 

 is held that if one who has entered lawfully thereafter ex- 

 ceeds or misuses his authority he may be held in an action 

 of trespass from the time of entry. Thus the cutting of 

 trees of a larger size than was authorized by a license 7 

 and the construction of a telephone line in a different place 

 than that designated when the permission was given, s 

 have both been held to constitute trespass. The more 

 logical remedy in such cases would evidently be trespass 

 upon the case. 



69 Interest Necessary for a Realty Action. The 



basis of the legal wrong in trespass is essentially an inter- 

 ference with the possession of the property and in England 

 the plaintiff must be able to show actual possession to main- 

 tain the action of trespass. This doctrine has been fol- 

 lowed in some American jurisdictions but the general rule 

 in the United States is that either actual or constructive 



1. Brock v. Smith, l-l Ark. 4:51: Whittier v. Sanborn. 3S Me. 32; Plainer v. Pivscott. 



43 X. H. 277; Dame v. Dame, 3s X. II. 420. 75 Am. Dec. 195. 



2. Elhridgo v. Gorman, 77 Conn. 099, (10 All. 043: Bullio v. Huniey, 3 Rob. (.La.) 



317; Loomis v. Green, 7 Me. 3SO; (.'lurk v. Hart (Miss. 1SS7>. 3 So. 33; Keini v. 

 Warfield, GO Miss. 709; Huddleston v. .Johnson, 71 Wis. 330, 37 X. \V. 107; 

 t". S. v. Mock, 140 U. S. 273; See I". S. v. Humphries, 140 I". S. 277. 



3. Southern K. Co. v. McKntire (Ala. 1010), 53 So. 15S; Teller v. I'nited States, 113 



Fed. 273. 



4. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, (13 S. K. 270. 



5. Higginson v. York, 5 Mass. 341; Fisher v. Xaysmith, IOC. Mich. 71. 04 X. W. 19; 



Scribner v. Young, 111 X. Y. App. Div. SI 4, 07 X. Y. Suppl. SOO; Haxelton v. 

 Week, 40 Wis. 001, X. W. 309, 35 Am. Rep. 79(i. 



6. Pearson v. Inlow, 20 Mo. 322, 04 Am. Dec. ISO. 



7. Shiffer v. Broadhead, 120 Pa. St. 2(H), 17 All. 502. 



8. Burnett v. Postal Tel. etc. Cable Co., 70 S. C. 402, 00 S. K. 11 10. 



