REMEDY FOR CONTINUING A BUILDING ON LAND. 353 



Trespass is the proper remedy for wronjfullij conlinuim/ a hidhUng 

 on plaintiff's kind, for the erection of which plaintiff has ah-eady 

 recovered compensation ; and a recovery, witli satisfaction for erecting 

 it, does not operate as a purchase of the right to continue such erec- 

 tion. And hence where, as in Holmes v. Wilson, the trustees of a 

 turnpike road built butti-esses to support it on the land of the plaintiff, 

 w^ho sued them and their workmen in trespass for such erection, and 

 accepted money paid into Court in full satisfaction of the trespass, 

 it was held by the Court of Queen's Bench, that after notice to 

 defendants to remove the buttresses, and a refusal to do so, the plaintiff' 

 might bring another action of trespass against them for keeping and 

 continuing the buttresses on the land, to which the former recovery 

 was no bar. And per Lord Denman C.J. : " The former and the 

 present action are for different trespasses. The former was for erect- 

 ing the buttresses. This action is for continuing the buttresses so 

 erected. The continued use of the buttresses for the support of the 

 road under such circumstances was a fresh trespass." And so in 

 Boicijer v. Coolc, where the defendant was sued in trespass for placing 

 stumps and stakes on the plaintiff's land, and paid into Court 40s., 

 which the plaintiff took out in satisfaction of that trespass ; and the 

 plaintiff afterwards gave the defendant notice, that unless he removed 

 the stumps and stakes, a further action would be brought against him ; 

 it was held that the leaving the stumps and stakes on the land was a 

 new trespass, and that the plaintiff was entitled to full costs in an action 

 for their continuance after the notice, though he recovered less than 

 40s. ParJce B. had refused to certify that the trespass was wilful and 

 malicious under the 3 & 4 Vict. c. 24, s. 2, and said that the proper 

 mode of obtaining such costs was by entering a suggestion on the 

 record, under the 3rd section, that the trespass was committed after 

 notice. 



And per Curiam.- "In Sherwin v. Sicindall, the judge clearly had 

 power to certify as he did under 3 & 4 Vict. c. 24, s. 2. In Daw v. 

 Hole the attention of the Court of Queen's Bench does not seem to 

 have been called to the effect of the 8 & 9 117//. III. c. 11, in con- 

 nection with the 22 & 23 Car. II. c. 9 : they appear to have thought 

 that the costs are given only where the judge certifies, not adverting to 

 the circumstance of the only statute depriving the plaintiff of costs in 

 these cases having been repealed. The next question is— was the trespass 

 in this case committed after notice ? That depends upon whether or 

 not the continuance of the stumps and stakes on the plaintiffs land, 

 after the notice to remove them, was a new trespass. The cases of 

 Hudson V. Nicholson and Holmes v, Wilson clearly show that it was. 



