Calef v. Thomas

• Decision Date: 31 January 1876
• Citation: 1876 WL 10031,81 Ill. 478
• Parties: RUFUS CALEFv.PHOEBE J. THOMAS.
• Court: Illinois Supreme Court

81 Ill. 478

1876 WL 10031 (Ill.)

RUFUS CALEF

v.PHOEBE J. THOMAS.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Piatt county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. CREA & EWING, and Mr. E. A. BARRINGER, for the appellant.

Mr. P. A. HAMILTON, and Messrs. NELSON & ROBY, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Phœbe Thomas rented land to Morgan S. Thomas, which he cultivated in corn in the summer of 1872, his term expiring March 1st, 1873. In August, 1872, he entered into a contract whereby he sold his part of the crop (two-thirds) to Rufus Calef, to be delivered in the shock on the ground. Delay occurred, probably through the fault of Calef, in estimating the quantity of corn, so that the transaction was not finally closed between Calef and Morgan S. Thomas until in March, 1873. Phœbe Thomas rented the land on which the corn was, to John Thomas, for the year 1873, his term commencing March 1st, of that year.

Calef neglected to remove the corn until late in May, whether by the consent of John Thomas or not, is in controversy; and then commenced to remove it with ox teams. Phœbe Thomas objected to the use of ox teams in removing the corn, insisting they would damage her land more than horses; but no heed was given to this objection.

John Thomas commenced plowing for his spring crop before the corn was all removed, and made frequent complaints to Phœbe Thomas that Calef was not removing his corn sufficiently to enable him to progress with his work. Calef had been notified previously to remove the corn, and there is evidence tending to show that the two teams employed for that purpose by him, and which were constantly engaged at it, were sufficient to remove the corn fast enough to keep out of the way of the teams of John Thomas in plowing.

Finally, Phœbe Thomas burned, on one occasion, several of the shocks of corn, and shortly afterwards a number more, in all sixty shocks.

Calef, after the burning, saw Phœbe Thomas, and she acknowledged that she had burned it; whereupon he went to the State's attorney and made a statement in regard to the matter, and he advised that she be prosecuted for malicious mischief. The State's attorney prepared an affidavit charging her with burning the corn, which Calef took to a justice of the peace, subscribed and swore to, and obtained a warrant for her arrest. She was arrested, went before the justice, waived an examination, and entered into recognizance for her appearance at the next term of the circuit court, to answer to an indictment to be preferred against her for malicious mischief.

At the next term of the circuit court the case was presented to the grand jury, who ignored the bill, and she was discharged.

The present suit is brought by Phœbe Thomas against Rufus Calef, in consequence of that prosecution. The jury found a verdict in her favor for $1055.55, upon which the court gave judgment, and he appeals therefrom to this court.

The principles of law applicable to the case, are, in the main, well settled and familiar to the profession. Blackstone says, a private nuisance is “anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.” Book 3d, (Sharswood's edition) 214, side 216. And in the same book, at page 5, he also says, “whatsoever unlawfully annoys or doth damage to another, is a nuisance, and such nuisance may be abated, that is, taken away or removed by the party aggrieved thereby, so as he commits no riot in the doing of it.”

But in order to justify the removal it must appear that the obstruction was wrongfully incumbering his premises, and that he therefore removed it, doing no unnecessary damage. If it appear that he unnecessarily destroyed it or appropriated it to his own use, the justification fails. Waterman on Trespass, sec. 684. So it is again said by the last named author, in sec. 686, “The party complaining of an injury has no right to do an unnecessary damage to the adverse party, notwithstanding the latter is in the wrong. He has not even the right to take such measures as will relieve his land in the most speedy manner, though he is not bound to exercise his right of removal in the way most convenient for the wrong doer.” See, also, Great Falls Co. v. Worster, 15 N. H. 412; Wood on Nuisances, sec. 834, and authorities referred to in note, and also sec. 838.

What was said in Ogden v. Lucas, 48 Ill. 492, was not intended to be in contravention of the foregoing principles, and can not be considered as so holding. The question there turned on the sufficiency of the pleas, and it was not necessary, nor did the court undertake to lay down a precise rule where one person may destroy the property of another.

The statute under which the plaintiff was charged and arrested, provides that whoever wilfully or maliciously burns, or causes to be burned, any barrack, cock, crib, rick or stack of hay, corn, wheat, oats, barley, or other grain or vegetable product of any kind, or any pile of coal, wood or any other fuel, or any pile of boards, plank, posts, rails, or other lumber, or any personal property whatever, of another, shall be imprisoned in the penitentiary not less than one nor more than six years.” Laws of 1867, p. 158, sec. 1.

Taking the word “or,” as here used conjunctively, it was necessary, to establish the plaintiff's guilt, to show that she acted “maliciously” in burning the corn, but it was not indispensable for that purpose that there should be direct proof of expressions of hatred or ill will; it was sufficient if it appeared, from all the evidence, the act was prompted by feelings of malevolence or revenge toward the defendant, and that it was not merely for the purpose of abating a nuisance.

Under the evidence before us we can hardly suppose an intelligent jury would feel authorized to find that the corn could not have been reasonably removed out of the way, and that its destruction by fire was absolutely necessary to the enjoyment of the use of the land. It is, indeed, questionable whether it was not being removed with sufficient rapidity to enable the tenant to prosecute his plowing, with all the force he had, uninterruptedly.

Still, the plaintiff is not to be deemed guilty simply because she misjudged her legal rights, and acted with too much precipitation. If a person of ordinary prudence and caution, situated as she was, and subject to the influences that operated on her mind, would have supposed the act was necessary to the enjoyment of the use of the property, and she acted under that belief, she could not be held guilty of having acted maliciously.

On the other hand, the defendant, by making the charge against the plaintiff and procuring her arrest, was not bound to prove her guilt or procure the finding of an indictment against her, at the peril of being personally responsible in an action for damages. If he acted upon probable cause, he was excusable, whatever the result of the prosecution, and it devolved upon the plaintiff to prove that he acted maliciously and without any reasonable or probable cause.

If the defendant, in good faith, communicated to the State's attorney all the material facts affecting the question of the plaintiff's guilt which were known to him, and acted upon his advice, the presumption of malice is rebutted and the action must fail.

The fourth instruction given by the court, at the instance of the plaintiff, was as follows: “The court instructs, for the plaintiff, that if the jury believe, from the evidence, that plaintiff leased or rented her farm to one Morgan Thomas for the crop season of 1872, said term to expire on the first of March, 1873, and that she rented the same land to one John Thomas for the crop season of 1873, his term to commence on said first day of March and continue for a year, and that defendant purchased part of the crop grown in 1872, and standing in cocks on the premises, and suffered the said corn to remain on the premises after the term of the first named tenant expired, and after said first day of March, 1873, and that after said first day of March, and before any corn was burned, the plaintiff gave or caused to be given to defendant notice to remove his corn from said premises, and that defendant neglected, through the months of April and May, to remove said corn, and that he insisted upon the right to enter...