right violated, in two ways, namely, by contact of anything with the body, or where a battery is committed upon a person by merely touching without hurting him, and by changes in the condition of the body, as by wounds or those changes in the nervous system which manifest themselves in consciousness as bodily pain. The protected rights which are comprised in property are the right of possession (jus possessionis), whose content is the fact of being in possession of the thing which forms the subject of the right, which is violated by any interference with the possession, and a right in the physical condition of the thing, which is violated by any impairment of that condition.

A protected right can not be exercised, because ex definitione there is no act to be done or omitted by its holder. But it can be violated. The violation of a protected right means the impairment of the protected condition of fact, e. g. a change in the physical condition of a person's body or of a thing which he owns. Protection is given to rights by imposing duties upon other persons, whose due observance by them will prevent or tend to prevent the impairment of the protected conditions of fact. Different rights have different kinds of duties imposed for their protection; and the duties which are imposed to protect any particular right are said to correspond to that right. A violation of a right does not amount to a wrong unless it is caused by a breach of some duty which corresponds to that right. If A injures B's body by an intentional or negligent act, he breaks a duty that corresponds to the right of bodily security, and is guilty of a wrong; but if he injures him by mere accident, though B's right is just as much violated, there is no wrong, because no breach of duty. The word violation is generally used to denote only those impairments of protected states of fact which are wrongful, i. e. which are effected by such breaches of duty, so that the mere violation of a right is spoken of as a wrong. But I am here using the word in a wider sense to denote any impairment however caused.

The protected rights that will figure most largely in the following discussion are rights of mental security, which are subdivisions of the more general right of personal security. There is no general right of mental, as there is of bodily, security. Generally the law does not attempt to protect a person from purely mental injuries, such as fright, mortification or anxiety. As a general rule it is not a tort to frighten or insult a person, even intentionally. But the law does recognize and protect cer

tain limited rights of mental security. The right that is violated in an assault without a battery is such a right, whose content is the mental condition of freedom from apprehension of immediate violence. Also when some other right has been violated, e. g. the right of bodily security by a battery, additional damages may sometimes be recovered for mental suffering, which makes it necessary to posit what may be called an ancillary right of mental security, which cannot be separately violated even to give a cause of action but can be violated in connection with other rights. Some other rights of mental security of a limited scope will be mentioned hereafter. It is enough to say here, that although the law does not protect a person's state of mind generally, it does so in some cases; the principle that states of mind as well as bodily states may form the contents of protected rights whose violations may amount to wrongs, is and always has been recognized in our law.

The right of property is a complex group of rights comprising both permissive and protected rights, as has been said above, in which respect it differs from such rights as that of free speech, which are purely permissive, and of personal security, which are purely protected rights.

The taking of property which is forbidden by the constitution means either of three things, namely: (1) Depriving a person of his property right, so that he no longer has any such right at all; (2) violating his protected right of property by some physical interference with the thing owned; (3) preventing him from exercising his permissive rights in ways in which he might otherwise have lawfully exercised them, and thus narrowing the content of those rights.

If forbidding advertisements on property is a taking of the property, it is so only in the third of the above-mentioned ways; therefore the first and second need not be further noticed.

This makes it necessary to consider somewhat more fully exactly what is meant by the exercise of a right. As has been said, the exercise of a right means doing the act that forms the content of the right, that very act and no other. But an act is a mere bodily movement, which in and of itself is never of any legal importance. Such bodily movements are important only if and in so far as they produce certain consequences. Acts are defined for legal purposes by reference to some of their consequences, both in the definitions of duties and of permissive rights. The duty not to commit a battery, for instance, is not not to do

any act, not to make any bodily movement, which will produce as its direct consequence the contact of something with the body of the other party. It makes no difference what the act is, a battery may be committed by any one of a thousand different acts; it is the production of the consequence that is forbidden. So in defining the acts which a tenant or bailee may or may not do in the use of the thing which he holds, we define the consequences which he may or may not produce upon the thing. He may not commit waste; and when we come to define waste we do so by describing certain effects which may not be produced upon the thing, not by describing the bodily movements by which those effects can be produced. The consequences by reference to which acts are described for the purpose of defining duties or permissive rights may conveniently be called the definitional consequences of the act or of the duty or right. In duties the definitional consequences may be actual or only probable or intended consequences of the act; in permissive rights of property they are actual consequences. An act done in the exercise of a right, besides producing consequences which are definitional of the right, may also produce other consequences which are not definitional. This distinction between definitional and non-definitional consequences, both resulting from the same act, is of the utmost importance. In the case of property rights, which are rights in things, which have things for their subjects, the only consequences which are definitional of the right are consequences produced upon the thing itself, changes in the position or condition of the thing. Consequences produced upon persons or upon other things are not definitional consequences of the right, though their production may be rightful for other reasons. If, for instance, the owner of a gun rightfully shoots a wild deer, the movements of the gun and its parts in aiming and firing, the explosion of the powder and the flight of the ball, all of which things are his property, are definitional consequences of his right; his property right includes a right to use the gun, powder and ball in that way, to produce those effects upon them. But the contact of the ball with the deer's body and the death of the deer, though consequences which he may lawfully produce, are not definitional of his property right in the gun or the powder or even in the ball. Whether he may lawfully shoot the deer does not depend at all upon his property right in the gun—the question would be the same had he taken another man's gun without the owner's leave-but upon whether he is subject to any duty, e. g.

under the game laws, not to do so. If there were such a duty, the effects produced upon the deer would be definitional of that duty, and of the acts done by him in shooting with reference to that duty, but not of his property right or of those same acts with reference to that right. The same consequences produced by an act may therefore be definitional of the act for one purpose, for defining one particular right or duty, but not for another; and different consequences produced by it may be definitional for different duties or rights.

To exercise a right means to produce the consequences that are definitional of the right, no others. An act done to exercise a right is an exercise of it only if and in so far as it produces such consequences; so far as it produces non-definitional consequences, it is not an exercise of the right at all. A distinction must be made between an act done in the exercise of a right and an act that is an exercise of a right; or rather, since it is one and the same act, between two different aspects of the act. Το recur to the example just mentioned of shooting a deer, the bodily movements by which the gun is aimed and fired are exercises of the property right in the gun so far as their effects upon the gun are concerned, but as to their effects upon the deer they are not exercises of that right, though done in the course of its exercise. An illustration of the confusion that prevails on this point may be found in the case of Detroit Base Ball Club v. Deppert. The plaintiffs had a baseball ground, and made profits from the fees which they charged for the admission of spectators. The defendant built on his own adjoining land a stand from which the games could be seen and admitted spectators to that, thus reducing the plaintiff's gains. This was held not to be a tort, because the defendant was only exercising his property right in his own land. The decision was right, but that reason for it was wrong. So far as the defendant's acts produced consequences on his own land, i. e. the presence of structures and spectators there, they were an exercise of his property right. But the plaintiffs' loss of profits, which was the only consequence that was injurious to them, was not a definitional consequence of that right, and in connection with that consequence the acts were not exercises of the defendant's right at all. The true ground of the 'decision was that the defendant did not break any duty which he owed to the plaintiffs. There

'61 Mich. 63, I Am. St. Rep. 566, 27 N. W. 856.

is no general duty not to do acts which cause pecuniary loss to another, though there are some duties of that sort of a limited scope, chiefly when the acts are done fraudulently or maliciously.

An act done in the exercise of a right may in connection with consequences of it which are not definitional of the right be a breach of duty; and if it produces non-definitional consequences which amount to a violation of a protected right, it may be a tort-to make a tort both a breach of duty and a resulting violation of some protected right to which the duty corresponds are necessary. This is the meaning of the maxim, sic utere tuo ut alienum non laedas, so far as that famous maxim has any definite meaning in exercising your own permissive rights do not produce non-definitional consequences which are violative of the protected rights of others. In the above example of shooting a deer, the deer being res nullius, the effects produced upon it were not violative of any right. But if the animal shot had been a neighbor's cow, the same sort of effects produced upon the cow would have been a violation of her owner's property right in her, and the act of shooting, though done in the exercise of a right in the gun, would have been a breach of duty, and the shooting a tort. So if a libel is printed in a newspaper, the existence of the printed sheet and its delivery to a buyer are definitional consequences of the publisher's property right in the printing press, paper and ink, and as to those consequences the printing and sale of the paper are exercises of that right. But the effect of those same acts upon the reputation of the person libeled is not a definitional consequence, it is vioative of the latter person's protected right of reputation, and the publication is a

tort.

It follows that when we say that the owner of a thing may do whatever he pleases with it, that statement is true only so far as relates to definitional consequences of his acts produced upon the thing itself. As to other consequences of such acts, every right of property is limited by the existence of protected rights of others and by duties not to produce non-definitional consequences violative of such rights. The more protected rights others have, the narrower are the limits within which the holder of a property right is practically able to exercise his right. If the state creates a new kind of protected right, that at once, ipso facto, irrespective of any question as to the police power, under a principle of law of great generality, practically narrows the scope of the exercise of the permissive rights of other per