100 Minn. 386 | Minn. | 1907
The plaintiff and appellant sought to perpetually enjoin defendants and respondents from constructing covers or blinds on the surface of a lake in front of a strip of land, to which plaintiff claimed ownership, separating two navigable lakes; from hunting or shooting ducks or other water fowl therefrom; and from shooting across or over the strip of land. The court ordered.judgment for the defendants,■ after trial. This appeal was taken from the order denying a motion for a new trial. The essential question here is whether the decision was justified by the evidence and was consistent with law.
„ The court found the facts as follows: The plaintiff owned the long, narrow strip, and accretions, extending to a creek connecting the waters of the lakes, which formed what is known as a - “duck pass.’r Although there was a public highway over the duck pass, by virtue of an agreement with the supervisors of the township the plaintiff had the right of fishing and hunting thereon to the same extent as though the road had not been laid out. The defendants and other persons wrongfully had previously gone on plaintiff’s land at the highway and shot ducks and water fowl, and now threaten to continue to do so. The effect of the acts was to practically monopolize the shooting privileges and to largefy impair the value of the privileges to the plaintiff arid her guests. The defendants had been previously restrained by an order of the district court from going upon the highway for the
There was testimony to the effect that a shotgun would carry shot “probably four hundred feet, maybe more than that.” In consequence, when persons in the blind would shoot towards plaintiff’s place, “the shot could not help but drop around [plaintiff’s] place, on the point, in the woods, or in the timber, or across this point here. A certain amount of the shot would go over the pass. * * * From thirty to fifty per cent, of the shot would go over the land and on the pass. It depends on the winds, and which- way the ducks fly. * * * In shooting ducks flying from the north, south, some of these ducks in the ordinary course of shooting naturally would fall when they were killed, on this .pass.”
1.. The first question is whether the facts found show a trespass. Defendants urge that the falling of the shot and of ducks on plaintiff’s land not having been shown to “become a nuisance to her, certainly could not be sufficient to constitute a trespass on the part of the defendants. The old maxim that the law does not concern itself with trifles might well be invoked here.” This contention involves a misapprehension of the law of trespass.
With respect to damages as an essential, the common law recognizes two kinds of actions. In the first class there is a direct invasion of another’s person or property without permission, which is actionable
It is also entirely immaterial by means of what instrumentality the trespass is committed. See 46 Cent. Dig. “Trespass,” § 8, col. 256. One maliciously annoying another by means even of loud noises, consisting of pounding on tin pans, etc., and thereby injuring the health
•More specifically, in the celebrated case of Pickering v. Rudd, 1 Starkie, 56, 1 Ames’ Cases on Torts, 43, Rord Ellenborough said: “I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close. The learned judge on the circuit with me doubted upon the point, but many with whom I afterwards conversed on the subject thought I was right, and the judge himself who at first differed with me was afterwards of the same opinion; but I never yet heard that firing in vacuo could be considered as a trespass. No doubt, if you could prove any inconvenience to have been sustained, an action might be maintained; but it may be questionable whether an action on the case would not be the proper form.” To the same effect, see Prewitt v. Clayton, 5 T. B. Mon. 4. If a hunter shoot where he has a right to kill a bird in the air, and step upon the land of another to pick up the dead bird, the act of going onto the land to pick up the bird relates to the act of shooting, and the whole act one transaction, constituting a trespass at common law apart from the statute. Earl, C. J., in Osbond v. Meadows, 12 C. B. (N. S.) 10, 15. And see Mayhew v. Wardley, 14 C. B. (N. S.) 550; State v. Shannon, 36 Ch. St. 423, 38 Am. 599.
It is true that in some of the cases referred to, and in L. Realty Co. v. Johnson, 92 Minn. 363, 100 N. W. 94, 66 L. R. A. 439, 104 Am. St. 677, the holding that trespass or some other enjoinable wrong existed was based upon an abuse of the highway. And see Harrison v. Duke, [1893] 1 Q. B. Div. 142; Hickman v. Maisey, [1900] 1 Q. B. Div. 752; Queen v. Pratt, 4 El. & Bl. 865.
Such cases are, however, at least significant illustrations of the extent to which the strictness of the law of trespass to realty, greater
Moreover, here the defendants proposed to inclose and make several to themselves that which belonged to the many. Did not the blind amount to “a clandestine encroachment and appropriation of navigable waters, which should be common to the public”? The precise nature, however, of defendants’ act, whether it amounted to a purpresture (23 Am. & Eng. Enc. [2d Ed.] 528; 7 Words & Phrases, 5867), or to nuisance (see People v. Park, 76 Cal. 156, 18 Pac. 141), or to both (see People v. Vanderbilt, 26 N. Y. 287; People v. Gold Run, 4 Pac. 1152, 66 Cal. 138, 56 Am. 80; The Idlewild, 64 Fed. 603, 12 C. C. A. 328), or to neither, need not be here determined. The defendants’ right to properly use the navigable lakes did not give them any more right to shoot over plaintiff’s land than a neighboring proprietor would have had to so shoot from his own premises. It has been definitely determined in this court that the neighboring proprietor may not lawfully do so. Lamprey v. Danz, 86 Minn. 317, 90 N. W. 578.
The mere fact that damage from falling shot or birds would be insignificant, as has been shown, has no logical bearing at all upon the question. The record, besides, conclusively shows substantial damage to the premises. At common law, trespass or case would have lain. The inherent danger to laqdowners from guns in the hands of hunters, often irresponsible and reckless, and sometimes malicious, must be adequately guarded against if the law is to be more than a name. As the hazard from the use or threatened use of dangerous in-strumentalities increases, in all branches of the law, the responsibility of the person employing them becomes stricter and may amount to insurance of safety. All remedial resources of law and equity may be exercised to prevent such peril to person or property, or conduct likely also to result in breach of peace.
2. The second question is whether or not an injunction will lie under the circumstances. It is elementary that equity will grant that relief to prevent a threatened trespass, especially where there can be no adequate pecuniary compensation, because it would be difficult or impossible to ascertain the damage resulting from such an act, and where otherwise a multiplicity of suits cannot be prevented. 1 High,
3. The remaining question concerns the propriety of the exclusion by the trial court of testimony tending to show that the defendants were acting from “unmixed malice.” We think that in this case, which involves the express findings of the court, the plaintiff was entitled to an injunction from danger of trespass. But he was called upon to face the contention that the proposed blinds were not three hundred and twenty five feet from the land, as the court found, but six hundred feet from his land, as the defendants’ evidence tended to prove. Plaintiff accordingly found it desirable or necessary to show that the defendants’ proposed act was malicious, would constitute a nuisance, or would make the use of his own property imminently dangerous. He should have been allowed to show everything relevant under his pleadings reasonably tending to entitle him to an injunction. He was entitled to invoke the general principle that “intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact damage, another, in that other person’s property or trade, is actionable, if done without just cause or excuse.” Bowen, L. J., in Mogul v. McGregor, L. R. 23 Q. B. Div. 598 [1892] App. Cas. 25. And see Walker v. Cronin, 107 Mass. 555.
Plaintiff has cited us, in this connection, to cases which tend more or less to apply -this general principle to this particular class of cases,
Order reversed.