The New International Encyclopædia/Disturbance

DISTURBANCE. The common-law offense of violating an incorporeal property right, as an easement, a profit, or a public right in the land of another. As such rights do not carry with them the right of possession, but, as the technical expression is, ‘lie in grant,’ and not ‘in livery,’ they cannot usually be protected by the action of trespass, which contemplates an interference with the possession of a corporeal interest in land. But such rights, however impalpable, do really constitute property, and they will be protected by appropriate legal proceedings against a disturbance by the owner of the land or by any other person whatsoever. In a few cases, as where one has an exclusive right to the use of another's land as a sole and several pasturage—such right being nearly equivalent to the right of possession of the premises—the action of trespass is available for its protection. In other cases the disturbance constitutes a nuisance, which may be abated either by the act of the party injured thereby, or by the action known as ‘trespass on the case,’ or, more shortly, ‘case’; or, in a proper case, by an injunction in equity.

The forms of disturbance are various, depending upon the nature of the right involved. Thus a common of pasture may be disturbed by shutting or driving out the cattle of the claimant of the right, or by unlawfully permitting other cattle to crop the herbage. In the last case the claimant may take the cattle damage feasant and impound them. A franchise is disturbed by wrongfully taking the tolls accruing therefrom, or by setting up a competing use, as a bridge, ferry, or turnpike. For interference with an advowson or right of presentation to a benefice, known as disturbance of patronage, a special action was provided, known as writ of right of advowson. Disturbance of ways happens “where a person who hath a right of way over another's ground by grant or prescription is obstructed by inclosures or other obstacles, or by plowing across it, by which means he cannot enjoy his right of way, or at least in so commodious a manner as he might have done” (2 Bla. Com., 242). This is remediable by the act of the party injured, removing the obstacle, or by an action on the case.

All of these forms of disturbance of private rights, together with the remedies appropriate to them, exist to-day, as at common law, without material alteration. The ancient wrong of disturbance of tenure, which consisted in breaking the feudal tie of lord and tenant, has become obsolete with the disappearance of the feudal system of land tenure. The disturbance of public rights, as of a highway or a public right of common or of fishing, may be either a private nuisance, remediable by the individual whose right is interfered with, or a public nuisance, or purpresture, remediable by the State. See Easement; Nuisance; Profit; Trespass, etc.; and consult the authorities referred to under Easement.