9 Barb. 652 | N.Y. Sup. Ct. | 1850
I think the learned justice erred in holding that the plaintiff had a right to enter upon the lands of the defendant for the purpose of regaining possession of his property.
The right to land is exclusive; and every entry thereon, without the owner’s leave, or the license or authority of law, is a trespass. (3. Bl. Com. 209. 18 John. 385.) There is a variety of cases where an authority to enter is given by law; as to execute legal process ; to distrain for rent; to a landlord or reversioner, to see that his tenant does no waste, and keeps the premises in repair according to his covenant or promise ; to a creditor, to demand money payable there ; or to a person entering an inn for the purpose of getting refreshment there. (3 Black. Com. 212. 1 Cowen's Tr. 411.) In some cases, a license will be implied; as if a man make a lease, reserving the trees, he has a right to enter and show them to the purchaser. (10 Co. 46.) Where the owner of the soil sells the chattel being on his land. As if he sell a tree, a crop, a horse, or a fanning mill, which remain within his close; he at the same time passes to the vendee, as incident to such sale, a right to go upon the
In some cases the entry will be excused by necessity. As iyC a public highway is impassable, a traveler may go over the ad-' joining land. (2 Show. 28. Lev. 234. 1 Ld. Raym. 725.) But this would not extend to a private way; for it is the owner’s fault if he do not keep it in repair. (Doug. 747. 1 Saund. 321.) So if a man who is assaulted, and in danger of his life, run through the close of another, trespass will not lie, because it is necessary for the preservation of his life, (Year-Book, 37 H. 6, 37, pi. 26.) If my tree be blown down and fall on the land of my neighbor, I may go bn'and take it away. (Bro. Tres, pl. 213.) And the same rule prevails where fruit falls oñfEe land of another. (Miller v. Fawdry, Latch, 120.) But if the owner of a tree cut the loppings so that they fall on another’s land, he can not be excused for entering to take them away, on the ground of necessity, because he might have prevented it. (Bac. Abr. Trespass F.) .....
Sometimes the right of action depends on the question .which
In this case, the plaintiff’s horses and wagon were on the lands of the defendant, where they had been left by the servant of the plaintiff. They were not there by the defendant’s permission. On the contrary, the plaintiff had been guilty of a trespass in sending his team across the lands of the defendant, after he had been forbidden to do so. And I think the defendant had the right to detain them, before they left the premises, and to distrain them damage feasant. (2 Rev. Stat. 427.) "But is not necessary to decide, whether the defjbdant de- tained tl^? property rightfully or wrongfully.
The plaintiff attempted to enter upon the lands of the defendant and against his will, for the purpose of taking away his property. This he had no right to do, even though his property were unlawfully detained there. If the plaintiff could not regain the possession of his property peaceably, he should have
The defendant can not be held liable for the injuries inflicted upon the plaintiff, on the occasion in question, unless he used more force than was necessary for the defense of his possession; and it seems he did not use enough to prevent the plaintiff’s effecting his forcible entry and taking away the property. But that was a question proper to be submitted to the jury.
The judgment of the circuit court must be reversed, and a new trial awarded; costs to abide the event.