TRESPASS MAINTAINABLE BY PURCHASER OP GROWING CROP. 347 



growing crop of grass there, for the purpose of being mown and made into 

 hag bg the vendee, has such an exckisive possession of the close, though 

 for a limited purpose, that he may maintain trespass quare dausuni 

 fregit against any person entering the close, and taking the grass even 

 with the assent of the owner {Crosbg v. Wads worth). Where A. is seised 

 in fee of a close, upon which the burgesses of B. have a right during 

 a certain portion of the year, to depasture their cattle, and have during 

 that period exclusive possession of the close, A. may maintain trespass 

 against a party who during that period commits a trespass in the subsoil 

 by digging holes, but not against one who during that period merely 

 rides over the close {Cox v. Glue, and Mousleg v. Saint). With respect to 

 the latter point llaule J. said, "You might as well contend that a man 

 who owns a stratum of coal a thousand fathoms deep, can bring trespass 

 against another for walking over the surface of the land. That is this 

 case, differing only in degree." And per Curiam ; " The word 'dose' in 

 a declaration in trespass includes the subsoil as well as the surface " {ib.) 

 The possession of the surface mag be in one person, and the possession of 

 and the right to the subsoil, in another ; and such rights may be derived 

 by gi'ant ; or may be inferred from a long and uniform course of enjoy- 

 ment, which will be supposed to correspond with the interest created by 

 some grant " {ib.) In Comyn's Digest Common {H) it is said that a 

 commoner cannot maintain trespass for damage to the soil or grass ; for 

 he has no interest but to take the pasture by the mouths of his cattle. 

 One person may hold the prima tonsura of land as copyhold, and another 

 may have the soil and every other beneficial enjoyment of it as freehold ; 

 and as the word close imports in the abstract the interest in the soil, if 

 the defendant in trespass (who by his plea alleged the plaintiff's close 

 to be copyhold, holden under a certain manor of Hatfield Peverell, and 

 justified the trespass therein under a grant from the lord, and by com- 

 mand of the copyholder) only make out that he has a partial interest in 

 the land, such as the right primes tonsurce, the issue must be found 

 against him {Stammers v. Dixon). 



Trespass does not lie for ths occupier of land against a partg, who 

 enters to retake goods wrongfully brought into the close by the plaintiff 

 (2 Roll. Abr. 565, 1. 54) ; and in trespass for breaking and entering 

 a yard, the defendant was allowed to plead that he entered for the 

 purpose of viewing a mare then in the stable in the yard, which had 

 recently been stolen from him ( Webb v. Beavan). A plea to a declara- 

 tion in trespass for breaking and entering the plaintiff's close, that the 

 defendant being possessed of certain goods, the plaintiff", without his 

 leave and against his will, took the goods and placed them on the 

 close in the declaration mentioned, wherefore the defendant made fresh 



