54 Vt. 685 | Vt. | 1882
The opinion of the court was delivered by
The referee reports that there was no proof before him that the defendant suffered any damage or incurred any cost by reason of the sheep getting into his pasture. Nominal damages, however, will be presumed, for the law implies a damage from every injury. The question arises, therefore, Does the right of distress for damage feasant exist when no actual damage is committed by the beasts distrained ? This question seems not to have been decided in this State, and turns on the construction to be given to our statute.
Our statute provides that “ a person may impound a beast found in his enclosure doing damage.” Not, “found in his enclosure ” simply ; but found there, “ doing damage.” In Porter v. Aldrich, 39 Vt. 326, it was held that the word “ enclosure,” as used in the statute, imports more than the word close, which embraces land owned or rightfully possessed by a party, although inclosed only by the imaginary boundary line that defines its territorial limits, but signifies land inclosed with some visible and tangible- obstruction, such as a fence, hedge, ditch, or their equivalent, for the protection of the premises against cattle; and that it was not intended to extend this summary remedy to beasts damage feasant on wild, uncultivated, unimproved, and unoccupied lands lying open and common. This case indicates an intention on the part of the court to construe the statute strictly, and to give full effect to the language in which it is couched. If the words, “ doing damage ”, are to have any effect, it would seem that they should be construed to mean, doing actual and substantial damage, to the exclusion of theoretical and presumptive damage ; or, in other words, doing damage in fact only, and not damage in law as well. A beast may stray into the inclosure of another on the crust in midwinter, when it can do no possible damage, and it be a technical trespass, for which nominal damages could be recovered ; but can the beast be impounded for damage feasant? Can it be taken as a pledge for the satisfaction of damges that neither have been nor could be committed ? The costs and expenses of impounding and keeping are only an incident, and accrue after the right of distress has attached, and cannot create the right. That the statute contemplates actual damage, is shown by the fact that it provides for the appointment of appraisers to ascertain the damage, and certify the amount thereof to the pound-keeper. It is true, as held in this State, that the impounder may waive his claim for damage; but this does not import that none need be sustained. In all the cases in this State where it has been so held, it either appears or was assumed that actual damage had been committed, and- in none