F. Distress damage feasant
Distress damage feasant is a common law self-help remedy that allows a person in possession of land to seize and detain a chattel that is unlawfully on his land and causing damage until the owner of the chattel pays compensation, instead of immediately bringing an action for trespass.
The remedy applies to both animate and inanimate chattels, for example straying livestock or a vehicle left on land. The person entitled to possession of the land may seize, detain, or impound the chattel in order to compel its owner to compensate him for the damage caused.
For this remedy to be legally invoked, two specific conditions must be met:
(i) Unlawful presence
The chattel must be on the land without the permission of the person entitled to possession. It must therefore constitute a trespass to land. However, the right may not be exercised prematurely: the owner of the chattel must first have had a reasonable opportunity to remove it, where such an opportunity is required by the circumstances.
(ii) Actual damage
Unlike the tort of trespass itself, which is actionable per se (without proof of loss), distress damage feasant requires actual damage. This damage need not be physical injury to the soil; it can include damage to other chattels on the land or the obstruction of the land's use, such as a car preventing others from using a parking space.
The primary purpose of the distress is to compel the owner of the chattel to pay compensation for the damage caused. However, at common law, the person distraining the object has no power to sell it to recover costs. He may only hold it as security until the owner pays for the damage.
The right to distrain is lost once the chattel has left the land. It cannot be seized if it returns on a subsequent occasion for damage done previously.
While the chattel is being detained under distress damage feasant, the land possessor cannot bring legal proceedings for the same damage for which the chattel has been distrained. If the chattel is returned without compensation being paid, the possessor may then sue for damages.
