60 Wis. 87 | Wis. | 1884
It seems to me there was error in the charge in respect to the responsibility of the defendant if he drove the calves away and they were lost. On that point the learned circuit court, in effect, charged that if the defendant wrns driving some pigs down the highway, and the calves being in the highway ran along ahead of the pigs, and the defendant did not intentionally or purposely drive the calves away, but acted in good faith with ordinary care in the matter, he would not be liable; but, if he intentionally drove the calves away, and they wandered off and were lost, then he wrould be. This was making the responsibility of the defendant depend wholly upon the question whether he acted in good faith and with care, whereas, as said by plaint- ; iff’s counsel, the motive which prompted the act had nothing to do in determining his liability for the loss.* The intent is; not necessarily an element in trespass; it is sufficient if the act be committed without any justification or legal excuse. Any unlawful interference with, or acts of ownership over,.1 the property, would render the defendant liable if, as a con- : sequence, the calves were lost. Dexter v. Cole, 6 Wis., 319; Hazelton v. Week, 49 Wis., 661. Evidence as to the quo animo with which the trespass was committed is admissible to enhance the damages. Put if the defendant drove the calves along the highway beyond his own premises, it was an unlawful act, and he is responsible for the consequences which resulted therefrom. Young v. Vaughan, 1 Houst. (Del.), 331; Knott v. Digges, 6 Har. & J., 230; Knour v. Wag
There is some difference of opinion among the members of this court as to the correctness of the following charge, which was excepted to by the plaintiff. The court said: “ The question of the liability of the defendant here depends altogether upon whether he drove that property off after he had turned it off from his place. It seems that he took up the property, the day before it is claimed he drove them off, somewhere about three or four o’clock. Tie claims that he did that to prevent them committing further depredation upon his crops, and [I am inclined to hold, as a matter of law, and so charge you, that, if he did so for the purpose of keeping the calves from committing depredation during the night, and if he had reasonable grounds for supposing that it was necessary to do so in order to protect his crops, he was justified in doing it.] If there was no necessity of it in order to protect his crops, lie would not be justified in doing it, [and if there was such a necessity I think he had the right to do it, and he had a right to keep them and in the morning turn them into the highway, and if they were rightfully taken possession of, and he in the morning simply turned them into the highway without driving them off, he is not liable in this action.] ” Those parts of the charge included in brackets were duly excepted to.
There was testimony given which tended to prove that the defendant found the calves doing damage on his lands, destroying his corn and cabbage, and that he took'them up
This is the testimony to which the charge refers, and the question is, "Was the court correct in holding, as a matter of law, that the defendant was justified, upon, finding the calves doing damage on his premises, in confining them for the night in the yard to prevent them from destroying his crops, and then in the morning turning them into the highway whence they had come upon his land? It seems to me he had the right to exercise that control over the calves temporarily to protect his property. .A person finding cattle wrongfully upon his land may turn them into the highway, and if they stray away he is not responsible. Cory v. little, 6 N. H., 213; Gilson v. Fisk, supra. ITe has the right to drive them off by any of the ordinary means to which a prudent man would naturally resort, and may use a dog for that purpose, unless there is something in the size or habits of the dog, or in the mode of setting him on, or pursuing, which would negative the idea of ordinary care and prudence. Wood v. La Rue, 9 Mich., 158; Clark v. Adams, 18 Vt., 425; Davis v. Campbell, 23 Vt., 236; Totten v. Cole, 33 Mo., 138. Rut when cattle escape through a delect in defendant’s fence, or in consequence of defendant’s taking down a sufficient division fence which the plaintiff is bound to maintain, the defendant then cannot drive them into the
But this discussion of the law of distress does not greatly aid in determining the question of the correctness of the charge. It may have this relevancy, if the distrainor may relinquish the proceedings by distress before he has recovered satisfaction for his damages and bring an action of trespass, as the authorities hold, it would seem to follow that the first taking was not tortious. But the defendant did not claim that he shut up the calves for the night because he was intending to distrain them, and afterwards abandoned his purpose and turned them out, nor did the court put his justification upon any such ground. The view of the court was that he had the right to shut up the calves for the night, if necessary for the protection of his crops; that such an interference with the owner’s possession would be lawful. He had the unquestioned right when he found the calves trespassing upon his premises to drive them directly into the highway, and if they wandered away and were lost it would not be his fault. Pie did not see fit to do that, but secured them for the night for a proper purpose, and turned them into the highway in the morning. Of course, he might have kept the calves in his yard, caring for them properly, notified the plaintiff where they were, and given the latter an op
By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.