King v. Blue Mountain Forest Ass'n

• Decision Date: 22 June 1956
• Citation: King v. Blue Mountain Forest Ass'n, 123 A.2d 151, 100 N.H. 212, 57 A.L.R.2d 234 (N.H. 1956)
• Parties: , 57 A.L.R.2d 234 Clarence W. KING v. BLUE MOUNTAIN FOREST ASSOCIATION. John L. MEYETTE v. BLUE MOUNTAIN FOREST ASSOCIATION.
• Court: New Hampshire Supreme Court

Page 151

123 A.2d 151

100 N.H. 212, 57 A.L.R.2d 234

Clarence W. KING v.BLUE MOUNTAIN FOREST ASSOCIATION.

John L. MEYETTE v.BLUE MOUNTAIN FOREST ASSOCIATION.

Supreme Court of New Hampshire.

Argued April 3, 1956.

Decided May 31, 1956.

Rehearing Denied June 22, 1956.

William E. Nolin, Claremont, and Richard F. Upton, Concord, for plaintiffs.

Burns, Calderwood & Bryant, Robert E. Hinchey, Dover, and John C. Fairbanks, Newport, for defendant.

KENISON, Chief Justice.

This case poses the problem as to what remedies exist in this state by statute or at common law for damage to property allegedly caused by wild animals.The four counts in each declaration present different grounds of liability but certain historical background is common to all counts.

The defendant corporation was organized in 1891 by Austin Corbin, 'underchapter 152 of the General Laws, for the purpose of enabling him to conveniently manage the park owned by him, consisting of about 25,000 acres of land, including Croydon and Grantham mountains, all fenced and stocked with wild animals, located in the towns of Newport, Cornish, Croydon, and Grantham, in establishing and maintaining which he expended in the vicinity of $500,000.'Blue Mountain Forest Association v. Borrowe, 71 N.H. 69, 51 A. 670.Included among the animals imported into Corbin park were Prussian wild boar from the Black Forest of Germany.See Baynes, Wild Life in the Blue Mountain Forest, ch. X(1931).Generally the boar could survive the climate of this state only if fed in the winter.Champollion, Blue Mountain Forest and its Animals, pp. 15, 59(1899).By special act of the Legislaturethe defendant was given special game privileges within the park upon the erection of a fence enclosing the entire area.Laws 1895, c. 258;State v. Griffin, 69 N.H. 1, 30, 39 A. 260, 41 L.R.A. 177.Section 1 of that statute provided that 'all fish, birds, and game of, in, or upon' the park 'shall be the property' of the defendant, its successors or assigns.The Blue Mountain Forest Association is the only one to have imported wild boar into the northeastern part of the United States and they are not indigenous to the North American continent.According to Champollion, supra, 61, 'It is in looking for worms and roots that the boar tears up the ground with his snout.At the time when the boar were most numerous in the forest, there was hardly an acre in the open, that had not somewhere been rooted up or the grass trampled down by the boar.'Champollion fixes the life span of the boar at 20 to 30 years, so that those boar presently inhabiting the Forest must be of the fourth or fifth generation of the animals originally imported into Corbin Park.

Beginning in 1938, and thereafter from time to time, some boar escaped from the park.It is alleged that the escaped boar and their progeny, bred and born during the period of their escape, caused damage to the plaintiffs' lands and crops, which damage was characteristic of wild boar as a class and normally expected of them if at large.It is also alleged that several years prior to the trespasses in September 1954, the boar and their progeny had from time to time passed back and forth from the defendant's park on to land of others, through holes in the fenced enclosure and that the boar habitually returned to defendant's enclosure for the winter or at seasons of food shortage to be fed or cared for by the defendant.

I.The first count in the declaration is in trespass predicated on the common-law liability of an owner or possessor for trespass to real estate by his livestock.Restatement, Torts, § 504.At an early date it was firmly established in this state that the owner or possessor of livestock was liable for such trespass irrespective of negligence.Noyes v. Colby, 30 N.H. 143;Blaisdell v. Stone, 60 N.H. 507;Kennett v. Durgin, 59 N.H. 560.This rule of strict liability for animal trespasses to real estate is still in effect in many of the eastern states today and 'the tendency has been to restore the common law rule, either by statute or by decision.'Prosser, Torts (2nd ed. 1955), p. 320.There has been no legislative attempt to modify this doctrine and it is still the law in this state.Ellis v. Blue Mountain Forest Association, 69 N.H. 385, 41 A. 856, 42 L.R.A. 570;Morse v. Boston & L. Railroad, 66 N.H. 148, 28 A. 286.SeeHowland v. Cressy, 95 N.H. 205, 207, 60 A.2d 128.It is significant that section 4 of Laws 1949, c. 294, RSA 467:6, provides that the remedy for trespass under the statute was not intended to supersede any remedy available at common law.As already indicated, strict liability for animal trespasses to real estate was firmly established in the jurisprudence of this state prior to the enactment of this statute.

If a farmer who owns or possesses contented cows is held to strict liability for trespass to real estate it would be a strange doctrine that would not impose at least the same liability upon the owner of battering boar which were imported into the state for the purposes of exclusive and private hunting.Whether the damage to the plaintiffs' real estate was caused by a wild boar that escaped or by its progeny born after its escape, which also belonged to the defendant, Laws 1895, c. 258, is not determinative of its liability for trespass.Winfield on Tort (6th ed. 1954)p. 646, states that there is no English decision on the duration of an owner's liability but suggests that if the wild animal is not indigenous it should continue until some one assumes permanent control of it.See also, Restatement, Torts, § 507, comment d. Williams, Liability for Animals(1939), p. 337.The present situation has some parallel to Brackett v. Bellows Falls Hydro-Electric Corporation, 87 N.H. 173, 175 A. 822, where the defendant was held liable for trespass by flooding the plaintiff's land and the damages were increased by the breeding of muskrats thereon even though this may not have been strictly foreseeable.We conclude that the demurrer to the first count in the plaintiffs' declaration should be overruled.

II.The fourth count of the declaration is in case but alleges no negligence.It is predicated on the theory that the possessor of wild animals is held to a standard of strict liability.It is conceded that there is no case in this jurisdiction imposing strict liability for damage to persons or property by escaped wild animals but it is urged that a rule should be adopted in this state following the Restatement of Torts, section 507, which reads as follows: 'Except as stated in §§ 508,517, a possessor of a wild animal is subject to liability to others, except trespassers on his land, for such harm done by the animal to their persons, lands or chattels as results from a dangerous propensity which is characteristic of wild animals of its class or of which the possessor has reason to know, although he has exercised the utmost care to confine the animal or otherwise prevent it from doing harm.'Section 508 relates to indigenous wild animals after their escape and section 517 relates to wild animals kept in pursuance of a public duty, neither of which sections are applicable to this case.

It is true that strict liability for the keeping of dangerous wild animals is supported by a large number of jurisdictions and that the English courts have regarded this liability as a mere phase and specific application of the rule in Rylands v. Fletcher, (1868) LR3 HL 330.SeeProsser, Selected Topics in the Law of Torts, pp. 159, 160(1953); annotation 69 A.L.R. 500.However some recent cases have shown a tendency to impose liability only for negligence.Vaughan v. Miller Bros. '101' Ranch Wild West Show, 109 W.Va. 170, 153 S.E. 289, 69 A.L.R. 497;Panorama Resort v. Nichols, 165 Va. 289, 182 S.E. 235.While some of the older text writers have summarized the law in favor of strict liability (Ingham, Law of Animals (1900); Robson, The Principles of Legal Liability for Trespasses and Injuries by Animals (1915)), it is significant that the most recent definitive treatise has criticized the rule of strict liability as it prevails in England.Williams, Liability for Animals (1939).Likewise it has been pointed out in a careful analysis that many of the cases which have been decided on the basis of strict liability could have been decided on the basis of negligence.McNeely, A Footnote on Dangerous Animals, 37 MichL. Rev. 1181.

An examination of the cases in this state definitely indicate a clear tendency to limit strict liability to those cases where the Legislature has provided for it, State v. Boston & Maine Railroad, 99 N.H. 66, 105 A.2d 751, or to those situations where the common law of the state has imposed such liability and the Legislature has not seen fit to change it.In the leading case of Brown v. Collins, 53 N.H. 442, the doctrine of Rylands v. Fletcher, supra, was entirely repudiated.The doctrine 'was received with a triple bath of ice water * * *' in New Hampshire, New York and New Jersey.Prosser, Torts (2nd ed. 1955), p. 332.The Collins case has been followed consistently in this jurisdiction and there has been no indication that, apart from statute, strict liability would be imposed in cases involving blasting, Crocker v. W. W. Wyman, Inc., 99 N.H. 330, 333, 110 A.2d 271, or in cases involving dangerous domestic animals.Login v. Waisman, 82 N.H. 500, 136 A. 134.In the recent case of Sleeper v. World of Mirth Show, 100 N.H. ----, 121 A.2d 799, liability for injuries received from an exhibitor's caged hyena was decided on the basis of negligence and not on the basis of absolute liability.Reynolds v. Hussey, 64 N.H. 64, 5 A. 458, which speaks in terms of duty and contributory negligence, did not establish a rule of absolute liability for dangerous domestic animals.Inasmuch as we have never adopted Restatement of Torts, § 509, which imposes liability for harm done by dangerous domestic animals 'although the possessor...