Millen, 1 N.C. 119, 1 Mart. 119 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 119, 1 Mart. 119

*Millen and Fawdry.

Pasch. 2. Car.

TRESPASS for chasing sixteen sheep with a dog in a place called Bessils, in such a vill. The defendant pleads not culp. and afterwards as to the chasing, says that the sheep were on his own land, damage feasant, that his land his close Bessils, without being separated by any fence or hedge, and that with a small dog, he chased the sheep out of his own land, in said Bessils, and the dog, contrary to his will and inclination, chased them on Bessils per paululum tempus. Et quam cito id vidisset, he called his dog back, and caused him to cease chasing the sheep, qua est eadem transgressio, &c. The plaintiff demurred; and the demurrer was adjudged for the defendant.

Whistler. There are three sorts of trespasses with dogs. 1. When a dog is in the habit of killing sheep, and the master has notice and keeps him, and afterwards the dog kills sheep. 2. When the master sets on the dog himself. 3. When the dog, without any usual bad quality, and without being set on, assaults a man. And this is not punishable. Tyrringham's case 4 Co. 38. It is lawful to chase cattle out of one’s own land, but not on other person’s. Here the commencement was on the defendant’s own land, but when the dog went over and did not desist; because he had been set on, trespass lies. He said he recalled him: quam cito id vidisset, &c. But perhaps the dog had much time to chase the sheep, and the master turned away; but if the beasts escaped in another’s land; I ought to pursue them freshly. 10 H. 7. 7 H, 7. 1. 25 H. 7. But here he does not say that he did so.

Littleton. The law does not presume that a man shall have so much command over his dog, as to be able to recall him suddenly; and there is a difference between a dog and cattle. If a dog goes on your land, you shall have no action. This case resembles that of molliter manus imposuit on a man to put him out of one’s own house, and when one does a lawful act, and necessarily some thing ensues which he could not prevent, trespass does not lie. 21 E. 4. 64. Justification for retaking cattle out of another’s land, on their escaping while they were going to the pound. 28 E. 4. 8. Trespass for ploughing another man’s land: Justification that he was ploughing his own land, and the horses became unruly, and carried the plough on the plaintiff’s land, and the horses ate a mouthful of corn. 33 E. 3. 8. Cattle come from the woods on my land; I chase them out with my dog and recall him; yet he pursues them in the forest and kills them: I shall be excused. *21 H. 7. 8. In this court M. 18 Jac. Jennings and Morsan. Driving other sheep which could not be separated from his own.

Crew, C. J.

assented, and cited Knivet’s opinion in the case of the pursuit of a pheasant, and 6 E. 4. that putting thorns on one’s land, so that they fall on another’s, is not justifiable. But those are not like this case, for it is impossible to recall a dog or a horse, if he will not obey, and in the 6 E. 4. if it was impossible that the thorns should not fall on the other’s ground, he shall be excused; and the opinion in the last case that trespass lies, seems hard, because thorns fall ipso nutu, and there is a difference between a dog and other animals.

Doderidge, J.

No doubt. No action lies. I may chase cattle out of my land, though a stranger cannot. 12 H. 8. In this court in Popham’s time, one justified the pursuing of a fox on another’s land, which he started on his land; for it is a noisome animal. Likewise of a wolf. Bracton says that a man outlawed caput lupinum gerit, that is to say, any one may pursue him. 9 E. 4. If trees grow close to my hedge and the fruit hangs over my neighbour’s land and falls there; I may justify the taking it up, provided I do not make a too long stay, and do not destroy his hedges. For fruit naturally falls: and necessity justifies me.

Jones, J.

Certainly; one may chase cattle out of his own land with a dog; so may a commoner: and if my dog chases them on another’s land contrary to my will, trespass does not lie: and the party may chase cattle out of his land, on that of the owner of the cattle, but not if it be sown with corn: and yet in cases of necessity, he may chase them on the owner’s corn land. Yet; it still seems that the owner of the cattle may have trespass in such cases, for it is not lawful to procure an easement to one’s self, to the injury of another.

Doderidge, J. Here is a damage to the owner of the cattle, but no injury, and there cannot be a trespass unless there be both an injury and a damage.

Judgment for the plaintiff.

Joderidge, J. If a butcher drives sheep in the streets of London, and they run into the house of a stranger: the butcher may justify taking them out of the house. Antea, p. 13. Poph. 161, Bendl. 171.