Clark v. Adams

18 Vt. 425 | Vt. | 1846

The opinion of the court was delivered by

Royce, J.

The only questions litigated at the trial appear to have been, whether the defendants had a legal right to set their dog upon the cattle, and whether the right was properly exercised, if they possessed it. And as no objection was then taken to the defendant’s evidence, for want of a special justification, nor any question raised as to the effect of the pleadings, it is now too late to start objections on that ground. It is true, that, by the case as originally certified and first presented to this court, I should have felt constrained to say, that the plaintiff was entitled to the charge requested ; for that the request might justly be pnderstood as being predicated, not merely upon the evidence given, but also upon the issue formed by the plea of not guilty. But an amendment has been made by the judge who presided at the trial; and since it now appears, that the request had reference avowedly and solely to the rights of the parties as arising from the facts of the case, this difficulty is removed.

It is claimed, that the act of the defendants was unlawful, because the land, from which the cattle were driven, was not enclosed by a legal fence. But this objection can avail nothing for the present purpose. It was not a highway, nor a common, but cleared and improved ground, which the defendants owned and occupied exclusively. At common law they might have distrained the cattle, or supported an action of trespass against the plaintiff. And although, by our statutory regulations in regard to fences, they may have been deprived of those remedies, (a point, however, not now in judgment,) yet their right to exclusive possession and enjoyment was not thereby lost. They were consequently entitled to enforce that right, by all other lawful means within their power. Of course, then, they might drive the cattle from the land, and we have only to enquire, whether they were authorized to do this by means of their dog, in the manner they did.

I have met with no decided case, or other authority, which has denied the right of a party, at common law, to use a dog in driving from his own grounds the cattle of another, which were wrongfully there doing damage. On the contrary, it is said by Ch. Baron Comyns, that “ if a master set on his dog to chase sheep out of his land, and the dog pursue them into another’s land, and the master recall his dog quam cito vidisset, an action does not lie.” 1 Com, Dig. 419, citing Latch 119. And the case, cited upon the present argument, of Millen v. Fandrye, stated by Aston, J., in 4 Burr. 2094, from Popham 161, is precisely to the same effect. It is true, that the action was there brought by the owner of the land into which the sheep were driven. But the decision must have proceeded on the ground, that the driving from the party’s own land was lawful. Otherwise the trespass complained of could not have been excused, as having been unavoidable, or involuntary; for one trespass can never be justified, or excused, by another. The law of these cases is adopted and sanctioned by Judge Swift in his Digest, page 527. We do not consider ourselves at liherty to deny the present existence of such a right. Nor do we think, that,'after the finding of the jury in favor of the defendants, it can be justly held, that the right was improperly exercised in this instance. The question in such a case should always be, whether the party acted with a due regard to the preservation of his neighbor’s property from injury, merely intending a prudent and safe exercise of his own right. Judge Swift’s distinction between a little dog and a large one, as furnishing a uniform test of the party’s right, has been properly waived by the plaintiff’s counsel. The instructions to the jury were sufficient to comprehend all that the law required of these defendants. From the facts detailed we might, indeed, be led to suspect, that the defendants did not use the requisite diligence to call in their dog, when the lawful purpose of pursuing the cattle was accomplished. But as the charge laid down the correct rule, though in terms somewhat general, we are not to assume, that the jury failed to understand the rule, or rightly to apply it to the evidence.

Judgment of the county court affirmed.