It is certain, that if the chattel of one man be put upon the land of another by the fault of the owner of the chattel, and not by the fault or with the connivance of the owner of the land, the owner of the chattel cannot enter to retake it; but that if it be put there without the fault or consent of either party, the owner of the chattel may enter and take it peaceably, after demand and refusal of permission, repairing, however, any damage which may be occasioned by his entry. So, also, where the parties are in equal default, for instance, by omitting to repair a partition fence, by reason of which the cattle of the one happens to stray into the close of the other. But all the books agree, that where a chattel escapes from the possession of its owner by his consent, exclusive negligence, or other default, he cannot pursue it into the close of another, without becoming a trespasser by his entry; but that he may lawfully enter and retake his property, where it has been wrongfully taken or received by the owner of the land. Now, if the property in the rails in question had been in the defendant, the plaintiff who had piled them on his land, could not have recovered even nominal damages for the defendant’s entry to remove them; and in this respect the direction would have been wrong. But it was in clear and uncontradicted proof, that the defendant, Chambers, had not even a colourable title to the land where the rails were grown and made, and consequently not even a colourable title to enter on the plaintiff’s land in order to carry them away; and the inaccuracy of the charge, in this abstract particular, was therefore immaterial.
Judgment affirmed.