delivered the opinion of the Court.

Proof of some injury done to the plaintiff’s right of possession, in the close described, is indispensable to sustain this action. If that proof be made, other enormities embraced in the acts of direct injury which are complained of, or arising by natural and probable consequence from them, may be considered in estimating the damages. And to direct the discretion of the jury in awarding a measure of damages, which over and above a just reparation to the plaintiff, may punish the trespassers according to their evil iteniions, the persons, language and conduct of the defendants immediately connected with the trespass, although prior to it, and not part of it, may be looked into as evidences of wantonness, malignity, or other evil motive. But previous injuries to the rights of third persons, or previous exercises of dominion by the defendants over their own property, however explanatory of motive, cannot, by a subsequent trespass upon the plaintiff, be also made trespasses, so that for the whole he may recover against the defendants as trespassers ah initio.

Whether the plaintiff had any right of possession to the land between the ditch and the road, or to the ditch itself, was a preliminary inquiry: but assuming, as on the circuit was supposed to have been established, that these belonged to the elder defendant, and the plaintiff’s possession of them had been that of a mere wrong doer, the defendant, the owner, had a right to enter and do with the soil as with other portions of his freehold. If he committed a breach of the peace, he was answerable criminally; if he did wrong to the plaintiff’s person, or personal property, for such wrong the plaintiff had his proper *321action; but for injury to the soil or breach of the close, the plaintiff could not maintain an action of trespass quare clausum fregil, for the soil was the defendant’s, and the title was his justification.

In relation to the matter contained in the 4th ground of appeal, the jury was directed, that under the proof, the elder defendant “had the right to re-open the ditch as a boundary, and if he did no more the plaintiff could not recover: but if he did more than was necessary to that purpose, and in doing it committed in connection with it other trespasses, it might make him and all concerned trespassers ah initio.” If the defendant had the right to re-open the ditch, that right pertained to him as owner, and the exercise of it standing singly, could, under no circumstances, have been a trespass for which the plaintiff could have maintained an action of trespass, viet armis. When the law gives an entry, authority or license to any person, and he abuses it by the commission of some subsequent act of trespass, he will be considered a trespasser from the first entry, or first act done under the authority or license. The meaning of this is, that an entry or act, which, without the authority or license of the law, would have been a trespass, shall even, when done under such authority or license, be, by a subsequent trespass, deprived of the justification which ihc authority or license would otherwise have given. The abuse of the authority or license determines the quo animo, and shows that the first act was not really as the law permitted, but retained the tortious character, which prima facie belonged to it. But if the first act was no trespass upon the plaintiff, whether the purpose of it was lawful or unlawful, or subsequent trespass, (however its motive may have been exhibited by the first act,) cannot operate to confer upon the plaintiff a right of action for that which was no legal trespass upon him. If the right of possession to the ditch had been in a third person, although the plaintiff might, as part of the transaction in explanation of the defendant’s motives in the subsequent invasion of the plaintiff’s soil, have shown their violence concerning the ditch, he could not have recovered damages directly for an entry into the ditch; as to that the right of action would have been in a third person. Much less can the plaintiff reco ver *322for an entry into the ditch, if the right of possession to it was in the defendant’s themselves, or one of them. They could do with their own as they pleased, subject only to the duty of not injuring others: and for an injury done to others, by abuse of their right over their own, although they might have been liable in case, they cannot be sued in trespass. The conduct of the defendantsas to the ditch, if it was their own, may have appeared harsh and ungenerous; but if it was lawful, should not have been confounded with a subsequent wrong, so as to give to the plaintiff damages for the whole as one continued trespass. Upon other points of the case some remarks might be made, but desirous of a new trial without prejudice, the Court rests its opinion simply upon the misdirection complained of in the 4th ground of appeal, and directs that the motion be granted.

Heard before Judge Withers’ election.

dissenting. In this case, I have the misfortune to differ from a majority of the Court, who, as I understand them, place their opinion on one of two grounds, viz: 1st. for error of law on the part of the judge below, in ruling that unlawful acts, committed under and in enforcing a right of entry, might make the defendants trespassers ab initio. 2d. for excessive damages. Some of the Court, I believe, predicate their opinion of the 1st ground, and others of the 2d; both however arc, I think, erroneous. 1st. The doctrine of trespass ab initio, as we understand it, may for ought I know, be considered as commencing in the six Carpenters case, 8 Co., 146., although it is manifest from that case, that it has its foundation in much earlier times. That case is, I think, full to the point ruled below. In it, it was first resolved, when li entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; but where an entry, authority or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser ab initio.” The distinction taken is between authority derived from the law, and that derived from the party. In the one, abuse makes the whole a trespass, in the other the abuse is alone so *323regarded. What is meant by entry, authority or license, given by law? Does it mean, as some of my brethren suppose, only cases of that kind, when by virtue of process, or some legal authority, such as a right to distrain, one enters, and then does some thing unlawful? I have no doubt it means all that and a great deal more. Mr. Chitty has, I presume, led to the mistake in his 1st volume of Pleading, 173. He is speaking of personal property, and the effect of an abuse of the possession at first legally acquired. In such connection, he says, the person who first acted with propriety under an authority or license given by law, abuses it, in which case he says, the taking, as well as the real tortious act, may be stated to be illegal. This is all right, and is as far as the matter before him required to be stated. At 180, however, he puts the principle right in reference to land; he says, “though the entry were lawful, yet., by a subsequent abuse of an authority in law to enter, as to distrain, &c., the party may become a trespasser ah initio.” The example given, is, what has led again to the mistake into which I fear my brethren have fallen? How can a mere illustration narrow a legal principle? The right of entry on a man’s soil, in the possession of another, what is that but an entry given by the law? If this must be answered affirmatively, does it not follow that an abuse of this legal right will make the entry as well as the subsequent abuse, tortious? I think there can be no doubt about it. But let it be tested another way. He who is in possession of land, has jorima facie an action of trespass against any one who may enter upon him. The owner, however, who has both title and right of possession, may peaceably enter, and upon showing his title, would be held not guilty of a trespass. Why? Is it not because the law gives him the right of entry? If, however, he enter by force, or after he is in, does acts which show that he did not enter to assert his title, but for oppression or vengeance, does it not follow that his justification in his title, the legal permission to enter, is destroyed by the intention manifested to do wrong; I apprehend it is clear that it is so. And so says Lord Coke in his report of the six Carpenters case “In the case of a general authority or license of law, the law adjudges by the subsequent act, quo animo, or to what intent he *324entered, for acta exteriora indicant interiora secreta.” In other words, the subsequent act of abuse shows that his right of entry was used to cover his real intention, which was to do other tortious acts. The case of Jones v. Muldrow, Rice, 64, Cheves, 254,* may be appealed to as an illustration of my motion. There *325the plaintiff was in the possession of the defendant’s land. He entered upon him, and committed many acts of violence. The jury found, as here, a large verdict of damages, which was sustained. How could that have been done on any other principle, than that the conduct of the defendant deprived him of his defence, of a legal right to enter by virtue of his title. The 2d ground, beyond all doubt, ought to receive little countenance, when it is remembered, that according to the proof, the defendant is a man of great wealth, and that against him this verdict is less by far than a verdict of §80, which I once heard pronounced against a poor man for blazing a pine tree on a desolate sand hill. There were many circumstances, which, if the jury believed, were surely of great aggravation, such as the entry of the elder Hannahan into Johnson’s, house against the will of his wife; the act of one of the irishmen in company with him, in palling her arm down from the door posts; his encouragement of the Irishmen to pursue the fugitive Englishman into the house, by telling them to tie him up and give him fifty lashes; the opening of the garden by cutting off one entire line of the fence; the defendant’s act in preventing the fence from being so put up inside of the ditch as to protect the garden; the almost entire destruction of the vegetables and flowers in the garden, and the great terror produced in the plaintiff’s family by the acts done by the men in defendant’s employment. Do not such circumstances warrant a heavy verdict? What is to be the limit? Can it be other than the discretion of twelve honest men? It is rare, I think, that an appellate Court ventures against the opinion of the Judge trying the cause, to grant a new trial on the ground of excessive damages. This case however, will constitute the precedent of such being done, not only against the opinion of the presiding Judge, but also against an array of aggravation which has led one jury to find #2500 damages, and may lead another to double it.