Canefox v. Crenshaw

• Decision Date: 31 January 1857
• Citation: 24 Mo. 199
• Parties: CANEFOX, Respondent, v. CRENSHAW, Appellant.
• Court: Missouri Supreme Court

24 Mo. 199

CANEFOX, Respondent,

v.CRENSHAW, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. Where a buffalo bull, a wild, vicious and mischievous animal, breaks into a close, the owner of such close may kill him if this be necessary to preserve his property from destruction, although the close may not be fenced in the manner required by the act regulating inclosures. (R. C. 1846, p. 575.)

Appeal from Greene Circuit Court.

Plaintiff, in this action, sought to recover damages for the killing by the defendant of a buffalo bull. The following answer (the striking out of which constitutes the error complained of) was struck out, on motion of plaintiff: “And the said defendant, for answer to plaintiff's petition, says, as to killing said bull in plaintiff's petition mentioned, that before the time of said killing, had been and was accustomed to doing mischief to said defendant's cattle--had been and was accustomed to jump into the inclosures of defendant over a good fence--the said bull being a buffalo bull, and being a wild and mischievous animal, worried the cattle of said defendant in said inclosures, and injured the fruit trees--and said bull, while in said inclosure of said defendant and at the time of so killing, was in the act of destroying the property of defendant, and the said bull was endeavoring to get defendant's cows with calf--and said bull, outside of said inclosure, and on the lands of the said defendant was then and there doing damage to defendant's cattle, which said defendant then and there owned--his cattle of good stock, and which he was anxious to improve--and said buffalo bull was jumping on and endeavoring to get them with calf and worrying them--and did then and there do them great damage, of which plaintiff was aware, and had full notice of the same--and the said defendant says that the said bull being so accustomed as aforesaid first before said killing of said bull by said defendant, was in the inclosure of defendant, having jumped a good fence of said defendant, and was then and there destroying the property of defendant, and the said bull being then and there a wild and vicious and mischievous animal, the property of defendant was then and there endangered and destroyed by said bull of the value of one hundred dollars in said inclosure there situate, and for which reason and because the said bull could not otherwise be restrained or hindered from worrying the cattle of said defendant and destroying the property of defendant, he, the said defendant, at the time mentioned in plaintiff's petition, did kill said bull, as it was lawful for him to do, for the causes hereinbefore stated, which is the killing of said bull, mentioned in said petition, whereof the plaintiff hath complained against the defendant in this petition, and now praying fully answered, prays to be herein dismissed without his costs.

Otter and Hendricks, for appellant.

F. P. Wright, for respondent.

LEONARD, Judge, delivered the opinion of the court.

We must reverse this judgment. The answer alleges substantially that the buffalo bull was a wild, vicious and mischievous animal--that he had broken into the defendant's field, and was in the act of destroying the defendant's property, of the value of one hundred dollars, when the defendant killed him, not wantonly, but from necessity, because he could not otherwise be restrained. Without undertaking to determine the precise conditions that will justify the killing of such an animal, we may safely assert that if the facts be as here stated, the killing here complained of was quite justifiable not only in a legal but in a moral point of view. In every system of jurisprudence there are cases in which the law allows a party to protect his own rights without appealing to the courts for that purpose, and by the common law one may not only defend his property from impending wrongs, but may in some cases redress his own injuries. When we are forcibly attacked in our property we may repel force by force, and the breach of the peace that happens is chargeable to our adversary; and when unlawfully deprived of it, we may retake it wherever we can find it, so that it be not done in a riotous manner, or attended with a breach of the peace. We may, ourselves, abate a nuisance that is injurious to our rights, doing no unnecessary harm, and take and detain animals that are...