14 Conn. 1 (Conn. 1840), Johnson v. Patterson

Citation:14 Conn. 1
Opinion Judge:Sherman, J.
Party Name:Johnson v. Patterson:
Attorney:C. A. Ingersoll and Blackman, for the plaintiff in error C. B. Phelps, for the defendant in error
Judge Panel:In this opinion the other Judges concurred.
Court:Supreme Court of Connecticut

Page 1

14 Conn. 1 (Conn. 1840)

Johnson

v.

Patterson:

Supreme Court of Errors of Connecticut.

July, 1840

in error.

Where the defendant, to prevent the plaintiff's fowls from trespassing upon his land, as they had before done, mixed Indian meal with arsenic, and spread it upon his land, having given the plaintiff previous notice that he should do so; and such fowls, coming afterwards upon the defendant's land, ate the poisoned meal, in consequence of which some of them died; it was held, 1. that previous notice, in contradistinction to notice after the fact, was sufficient; 2. that notwithstanding such notice, the defendant was not justified in the use of deadly means, and consequently, was liable in damages.

The original action was trespass, brought by Henry Patterson against Sheldon C. Johnson, to the county court of New-Haven county, for killing and destroying ten hens and chickens, the property of the plaintiff. There was also a special count in case, for the same injury.

On the trial before the county court, November term, 1839, the plaintiff offered evidence to prove, and claimed to have proved, the allegations in his declaration. The defendant claimed to have proved, by proper evidence introduced for that purpose, that he had been, for a long time, trespassed upon, by the plaintiff's fowls coming upon his land and destroying the seeds therein planted, and the vegetation thereon growing: that to prevent a repetition and continuation of these trespasses, he prepared Indian meal, mixed with arsenic, and scattered it upon his land, having first informed the plaintiff, that such a preparation would be placed there, and that the plaintiff must confine his fowls, or in some other way prevent them from trespassing upon his land again, otherwise they certainly would be poisoned: that after such notice, the meal so prepared was immediately scattered on the defendant's land; and the plaintiff still neglecting to confine his fowls, or to prevent their coming upon the defendant's premises, they trespassed thereon, and while so trespassing, ate the Indian meal so prepared, and some of them thereafter died in consequence of it; which, the defendant claimed, was the same injury for which the plaintiff sought to recover damages. And the defendant claimed, that if these facts were satisfactorily proved, he was justified; and that the court should so charge the jury. The defendant further claimed, that he might lawfully scatter poisoned meal upon his own premises, without any notice to the plaintiff.

The court charged the jury, that unless the defendant had given full and ample notice to the plaintiff, after the poisoned meal had been laid, the defendant could not be justified; and that no previous notice of his intention so to prepare and leave the poisoned meal, could be sufficient; and refused to charge the jury, that the defendant had a right to scatter it, without notice.

The jury returned a verdict for the plaintiff. The defendant filed a bill of exceptions to the charge, and thereupon brought a writ of error in the superior court; which was reserved for the consideration and advice of this court.

C. A. Ingersoll and Blackman, for the plaintiff in error, contended, 1. That no person can lay the foundation of an action for damages in case, for an injury to his property, by a wrong on his part, or by neglect or breach of duty. To entitle a plaintiff, in an action of this sort, to recover, he must be free from fault. 1 Sw. Dig. 551. 553. Wadhurst v. Damme, Cro. Jac. 45. Blyth v. Topham, Id. 158, 9. Brock v. Copeland, 1 Esp. Rep. 203. Butterfield v. Forrester, 11 East 60. Burckle & al. v. New-York Dry-Dock Company, 2 Hall 151. Bush v. Brainard, 1 Cowen, 78. Rathbun & al. v. Payne & al. 19 Wend. 399. Deane v. Clayton, 7 Taun. 489. Ilott v. Wilkes, 3 Barn. & Ald. 304. Sarch v. Blackburn, 4 Carr. & P. 297. Curtis v. Mills, 5 Carr. & P. 489.

Page 2

2. That the plaintiff was in fault in permitting his fowls to trespass on the defendant's land, after the notice given.

3. That the defendant had a right to protect his property, by the acts, which, it is claimed, were done. Mahan v. Brown, 13 Wend. 261. This case is not like that of Townsend v. Wathen, 9 East 277.

4. That the charge was not as it should have been, on another ground. In some cases, the defendant would have a right directly to kill the plaintiff's animals trespassing, if the killing was necessary to protect his property. White v. Ward & al. 9 Johns. Rep. 232. Vere v. Lord Cawdor & al., 11 East 568. Wadhurst v. Damme, Cro. Jac. 45. If the same principles are to be applied to the killing by means of the poisoned meal, as would be applied to a direct killing, the charge was wrong; as, in such a case, the defendant would have a right, if necessary, of which necessity the jury are to judge; and this should have been submitted to them.

C. B. Phelps, for the defendant in error, contended, 1. That the maxim Sic utere tuo ut alienum non lœ das, was applicable to and governed the present case. Townsend v. Wathen, 9 East 277. Dean v. Clayton, 2 Marsh. 577. S. C. 7 Taun. 489.

2. That the facts proved by the original defendant, did not constitute a justification. The poisoned meal afforded no remedy for past injury, and was not a preventive of present aggression. It could only operate as a preventive of future mischief, by the destruction of the instruments of its accomplishment. But the poisoning of animals is a public offence, and involves the infraction of a private right. Commonwealth v. Leach & al. 1 Mass. 58.2 Russell, 1682. n.

3. That the charge was unexceptionable with regard to notice. A prospective notice would be nugatory-a forewarning of possible evil-a mere threat. Notice after the fact shews the presence of actual danger.

Sherman, J.

This is not a case in which the destruction of the plaintiff's property resulted from acts done by the defendant, in the ordinary use of his own, without any intention to do the injury complained of; as in Blythe v. Topham, Cro. Jac. 158. where a stray horse fell into a pit made by the defendant in the common; or in Bush v. Brainard, 1 Cowen, 78. where the cow of the plaintiff, trespassing on the defendant's land, was killed, by drinking maple syrup in the defendant's sugar works. In this case, the defendant scattered the poison in his enclosure with intent to kill the plaintiff's fowls, if they should again trespass on the place. Being of opinion that the notice given by the defendant immediately before the poisonous article was put on the land, was sufficient, the only important question is, whether the defendant, having given such notice, offered in evidence a sufficient justification. If the jury have found the verdict, which they ought ultimately to give, the final judgment must be affirmed, although the court erred in regard to the sufficiency of the notice.

Page 3

By the settled principles of the English law, the degree of force, which may be employed in defending one's person or property, when present, is well defined, and admits of no controversy. It is entirely and exclusively defensive. If a man makes an assault on the person of another; or enters his house and refuses to go out, when ordered; or enters on his land; or in any way attempts a mere trespass on his property real or personal, by force; so much force as is necessary to to repel or prevent injury, or remove the trespasser, may be employed. There is no doubt, that if A is trespassing on the land of B, the latter, when present, by himself or his servants, may, after notice to depart, use such reasonable force as is necessary for his removal. He may use like force to expel another's beast from his land, or he may seize and impound it. But he has no right, by the English law or our own, when present, in such a case, to destroy life, or inflict permanent injury, or use greater force than is necessary for removal or prevention. This is admitted. The right to kill a bull or other furious beast from which one's person is in present danger; or a dog chasing sheep or other animals of property, so that they are exposed to harm; or a dog seen at large, which is accustomed to bite mankind; is an exception to this rule. Wadhurst v. Damme, Cro. Jac. 45. 1 Saund. 84. note (3.) Leonard v. Williams, 9 Johns. Rep. 233. Putnam v. Payne, 13 Johns. Rep. 312. 1 Freem. 347.

But in England, it has long been usual for the proprietor of land to place spring-guns and other deadly engines upon an enclosure, so concealed as not to be seen, to wound, kill or destroy any man or animal that comes upon the place; and it is there held, that if proper notice be given, he is justified in inflicting any injury on men or animals, trespassing on the grounds, even to the taking of life. Thus, in the case of Ilott v. Wilkes, 3 Barn. & Ald. 304. decided in 1820, the plaintiff was gathering nuts on the wood land of the defendant, upon which nine or ten spring-guns were concealed, and was wounded in consequence of treading on a wire, communicating with a loaded spring-gun. He had notice that these guns were set in the wood. The court held the defendant justified, and judgment was given in his favour. It was admitted, that, in such a case, if the defendant had been present, he could not have used a dangerous weapon, nor have inflicted any wound upon the...

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