Millen v. Harvey, 1 N.C. 13, 1 Mart. 13 (1793)

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

1 N.C. 13, 1 Mart. 13

*Millen vs. Harvey.

Pasch. 2 Car.

TRESPASS was brought for chasing his sheep, with a dog, on his own land. The defendant justified that the plaintiff’s land is joining a common, and that the plaintiff’s sheep were strayed on the defendant’s lands, and that he with a dog, chased the sheep out of his own land, and the dog, in pursuit of the sheep, contrary to the defendant’s will, followed the sheep on the plaintiff’s land: and thereupon there was a demurrer.

Littleton

argued, that it is a good justification. For a man has not such a command over his dog, as to prevent him from entering his neighbour’s land—especially when he pleads that it was against his will; as 22 E. 4. 8. In trespass for ploughing the plaintiff’s land, the defendant says that the plaintiff’s land is contiguous to his; and while he was ploughing his own land, his horses became unruly, and violently carried the plough on the plaintiff’s land, contra voluntatem suam. And this was held a good justification. It is so likewise, in this case. To this same point is also 21 E. 4. 64. 43 E. 3. 8. If a man does a lawful act, which afterwards becomes unlawful, it is damnum sine injurla. 21 H. 7. 28. If my sheep are mixed with others, I may chase them all to sever mine; and this is no trespass. And it was thus adjudged in Jermyn’s case, 18 Jac.

Crew, C. J.

The justification here is good. He might chase the sheep that were on his ground. 4 Rep. Tyrringham's case, and if the dog pursues the sheep on their owner’s land, contra voluntatem of the other, it is no trespass. 38 E. 3. 10 b. I. S. found a pheasant on his ground, and let a falcon fly at him, and the hawk took the pheasant on the land of I. D. who brought trespass for the entry of I. S. held that it lies. The same in 6. E. 4. 7. One cuts trees on his own, land, they fall on his neighbour’s, he goes there and takes them, trespass lies, otherwise if their had been blown down by the wind. But this case differs from those.

Doderidge, J.

Clearly: Trespass does not lie here, in as much as the rule is, that in all trespasses there ought to be a voluntary act, and also a damage, otherwise trespass does not lie. And in 22 E. 4. 8. If cattle graze the grass. The same if one drives sheep in the highway, and they escape on your land, against the will of the driver, trespass does not lie, because it was contra voluntatem, 12 H. 8. I may drive cattle out of my own land, but no one else can.

Jones, J.

It is a good justification.

And judgment was entered accordingly.

*He said perhaps it will make a difference when the driver drives the cattle in the land of the owner, or in that of stranger, Also there is a difference when a man chases cattle out of his own land himself, or causes them to be chased by his dog, or whether he chases them out of his ground in a common, or in the highway. Quære of these. postea, p. 119. Poph. 161. Bendl. 171. Jones 131. 2 Cr. 568.