Langer v. Goode
| Decision Date | 21 April 1911 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Joseph Langer, as plaintiff, against W. H. C. Goode, as defendant. From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
J. F Callahan and S. B. Bartlett, for appellant.
Smith Stimmel and Pollock & Pollock, for respondent.
A. G. BURR, Judge of the Ninth Judicial District, sitting at the request of the court
OPINION
This is an action in which the plaintiff seeks to recover from the defendant damages alleged to have accrued to him by reason of the plaintiff's alleged neglect to destroy wild mustard growing on his farm. The complaint, omitting the formal parts, is as follows: "That at all times hereinafter mentioned the plaintiff was the owner and in possession of certain tracts of land situated in the county of Cass, state of North Dakota, described as follows: [Here setting forth description.]
To this complaint the defendant demurred upon the grounds "that it appears upon the face of said complaint that the same does not state facts sufficient to constitute a cause of action." The proposition involved being argued before the trial court, said court sustained the demurrer, and from the order sustaining said demurrer the plaintiff has appealed to this court.
The respondent in his brief raises the question as to how the plaintiff could know, "how can anybody know," that the wind blew the mustard seed from the defendant's land upon plaintiff's land, citing authority to the effect that "the wind bloweth where it listeth, and thou canst hear the sound thereof, but canst not tell whence it cometh or whither it goeth." This objection, however, would more properly be addressed to the character of evidence which may be introduced in proof of damage, if such a cause of action be maintainable, but is not properly before us on the demurrer, nor should we concern ourselves with the proposition; for, as the same authority has said, "sufficient unto the day is the evil thereof."
The question presented to us on the demurrer involves the construction of § 2086, 2088, and 2089 of the Revised Codes of 1905. The appellant in this case stands squarely for the rights which he claims he has under these sections, alleging that the defendant is guilty of a breach of duty imposed upon him by the statute, and that because of said breach appellant has been damaged, invoking the rule in the law of torts, that where a duty is imposed upon a person by a statute which is designed primarily for the protection of other people, he is liable in damages to any person for whose protection this duty is imposed, resulting from neglect to perform any duty, where the damages sought to be recovered are of the character which the statute is designed to prevent.
It will be noticed that the complaint in this case does not allege that the board of county commissioners for the county of Cass, at any time during the years covered by the complaint, prescribed the time and manner of destroying noxious weeds, as provided for by § 2086, and it is expressly admitted by the appellant himself in his brief that the said board did not give the required notice. It is argued by the appellant that the defendant herein owed a duty to the plaintiff irrespective of any action of the board of county commissioners, and that, independent of the fact that the board may have failed to perform the duty imposed by the statute upon the defendant, the defendant had no right to permit a use of his property in such a way as would injure appellant. It is argued by the appellant that the act of the defendant was unlawful; that is, that it was unlawful for the defendant to omit to destroy the noxious weeds; and he cites, as ground for maintaining his action, § 6556 of the Code, which says: "Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages." It becomes necessary for us, therefore, to determine whether or not, under the facts in this case, such a duty as hereinbefore referred to did devolve upon the defendant for the benefit of the appellant. At the outset it will be noticed that there is a difference between omitting to do something which is required to be done by the statute, and the doing of something which is prohibited by the statute. It is not contended that where a person fails to destroy noxious weeds upon any lands which he owned or occupied, there is a penalty prescribed by statute for such failure, so as to make the failure a criminal offense. Section 8760 of the Revised Codes makes it a crime to do any act the performance of which is prohibited by statute in cases where no penalty for the violation of the statute is imposed under any statute, but this section cannot be construed so as to make it a criminal offense to fail to do an act which may be required by statute.
Section 6661 says: "One must so use his own rights as not to infringe upon the rights of another." That is but one of the many translations of the old maxims, Sic utere tuo at alienum non loedas. These maxims are merely aids to the construction, and, as Judge Engerud pointed out in Carroll v. Rye Twp. 13 N.D. 458, 101 N.W. 894, the damages recoverable under such maxim are not damages as for every injury, but such damages only for which the law gives redress; and, as counsel in Jeffries v. Williams, 5 Exch. 792, 20 L. J. Exch. N.S. 14, 3 Mor. Min. Rep 645, suggests, the injury guarded against is the injury to the rights of others, which means legal rights; otherwise, the more complicated civilization becomes, the more difficult it would be for a man to use or enjoy the use of his own property. The English courts appear to have carried the application of this maxim for the benefit of "others" to a much greater length than the American courts, and, in fact, all or almost all of our American writers agree that the English ruling cases, such as Fletcher v. Rylands, 37 L. J. Exch. N.S. 161, 1 Eng. Rul. Cas. 235, 6 Mor. Min. Rep. 129, have not been adopted as authority in our courts. The duty which a man owes to his neighbor in respect to his neighbor's legal rights widens in accordance with the beliefs and the age of the application of the rule. As we advance in civilization, and the principles of Christianity become more widespread,--for this maxim is but an application of Christian principles,--the duty which one man owes to another, no doubt, will enlarge and increase, and with this enlargement our legal system must keep pace; yet it must be conceded that almost invariably the highest, most delicate, and finest developed sense of duty and the best system of ethics have not been translated into the law of the land, and it is principally by change in legislation that the worn-out legal ethics must be supplanted by the system that best expresses the moral genius of civilization.
How far, then, does the statute go in prescribing a duty to destroy noxious weeds and permitting recovery of damages for failure so to do? The appellant concedes that no such liability was incurred at common law, and relies, as he says "upon the plain letter of the statute," which must be construed, of course, in the light of the maxim hereinbefore quoted. It is not claimed that the action of the defendant in permitting noxious weeds to grow amounts to a public nuisance, as defined in §§ 9027 and 9029, of the Revised Codes of 1905. In Fisher v. Clark, 41 Barb. 329, the court says: "The right of everyone to use his own property as he pleases for all the purposes to which such property is usually applied is unlimited and unqualified up to the point where the . . . use becomes a nuisance." In this case cited, the court...
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