Bowman v. Brown

| Vt. | Oct 15, 1882

The opinion of the court was delivered by

Veazey, J.

The recovery below was had, under the count for assault and battery, for injuries received by the plaintiff while proceeding to impound the cow of the defendant Brown and in resisting the assaults of the defendants in their efforts to rescue the cow. The defendants claimed they had the right to retake the cow and to use such force as was necessary for that purpose, for the alleged reason that under the facts found the plaintiff had no legal right to impound the cow. The plaintiff had not obtained possession wrongfully or with any fraudulent purpose. The cow was in his enclosure and he was proceeding to deal with it as he thought he had a right to do. Defendants’ counsel insist that the rule is established in this State to the effect that a person who is out of possession may lawfully “ fight himself” into legal possession. This rule has not been expressly, adopted except in cases where the owner was dispossessed by force or fraud and the pursuit was fresh. Hodgedon v. Hubbard, 18 Vt. 504" court="Vt." date_filed="1846-03-15" href="https://app.midpage.ai/document/hodgeden-v-hubbard-6573470?utm_source=webapp" opinion_id="6573470">18 Vt. 504. And such cases have been somewhat criticised' but not overruled. Dustin v. Cowdry, et al., 23 Vt. 631" court="Vt." date_filed="1851-06-15" href="https://app.midpage.ai/document/dustin-v-cowdry-6574635?utm_source=webapp" opinion_id="6574635">23 Vt. 631. The statute provides that “ a person may impound a beast found in his enclosure doing damage.” R. L. s. 3978. It also provides a penalty for rescuing a beast from the custody of a person driving or being about to drive it to pound. R. L. s. 8998. If a beast is impounded without right,the owner has ample legal remedy. We think the effect of the statute is to restrict interference by force to rescue the beast. It clothes persons whose premises have been invaded by their neighbors’ stock with a quasi official power. Like officers serving process they proceed at their peril, but' it is only a legal peril. This construction would conduce to peace and good order, while the other view would naturally promote encounters and encourage breaches of the peace, where the law furnishes full 2'emedy for the protection and settlement of respective rights.

If the County Court had found the facts to be as it found the defendants’ testimony tended to show them, there would have been strong ground for holding, as the defendants’ counsel now claim, that the plaintiff gave up his purpose to impound and surrendered the possession of the cow, after which he had no right to interfere ; but the court say the testimony on these facts was conflicting and find against the defendants on this point. The exceptions do not expressly state that the plaintiff'notified the defendants of his purpose to impound the cow, but we think they state enough to show that the defendants so understood it.

The judgment of the County Court is affirmed.