Pegg v. Gray

• Decision Date: 09 July 1954
• Docket Number: No. 668,668
• Citation: 240 N.C. 548,82 S.E.2d 757
• Court: North Carolina Supreme Court
• Parties: PEGG, v. GRAY.

Page 757

82 S.E.2d 757

240 N.C. 548

PEGG, v. GRAY.

No. 668.

Supreme Court of North Carolina.

July 9, 1954.

Howerton & Howerton, Greensboro, for plaintiff, appellant.

Hines & Boren, Jordan & Wright, and Charles E. Nichols, Greensboro, for defendant, appellee.

JOHNSON, Justice.

We are not dealing here with a trespass committed by a dog of its own volition while roaming abroad.

It may be conceded as a well-established principle of law that where a dog roams abroad on another's land of its own accord and does damage or inflicts injury to persons, animals, or property there can be no recovery therefor in the absence of special statutory enactment, unless it be shown that (1) the dog was possessed of a propensity to commit the depredation complained of and (2) the owner knew, or was chargeable with knowledge, of such propensity. Buckle v. Holmes, 2 K.B. 125 54 A.L.R. 89. See also: State v. Smith, 156 N.C. 628, 72 S.E. 321, 36 L.R.A., N.S., 910; Banks v. Maxwell, 205 N.C. 233, 171 S.E. 70.

This principle of law is grounded upon a recognition that by natural instinct and habit an ordinary dog of most breeds is inclined to roam around and stray at times from its immediate habitat without causing injury or doing damage to persons or property. And in deference to this natural instinct of dogs the processes of the early common law eschewed the idea of requiring that they be kept shut up, and instead promulgated the foregoing rule which allows a reputable dog a modicum of liberty to follow his roaming instincts without imposing liability on its master. And so, since early times the law has been and still is that the owner of a reputable dog is not answerable in damages for its entry upon the lands of another upon its own volition under circumstances amounting to an unprovoked trespass. Buckle v. Holmes, supra; Mason v. Keeling, 1 Ld.Raym. 606, 91 Eng.Reprint, 1305; Brown v. Giles, 1 Car. & P. 118, 171 Eng.Reprint, 1127; Buck v. Moore, 35 Hun., N.Y., 338; State ex rel. Smith v. Donohue, 49 N.J.L. 548, 10 A. 150, 60 Am.Rep. 652; 2 Am.Jur., Animals, Sec. 105; Annotation: 107 A.L.R. 1323.

However, the rule is different where a dog owner or keeper for the purpose of sport intentionally sends a dog on the lands of another or releases a dog or pack of dogs with knowledge, actual or constructive, that it or they likely will go on the lands of another or others in pursuit of game. In such cases the true rule would seem to be that the owner or keeper, in the absence of permission to hunt previously obtained, is liable for trespass, and this is so although the master does not himself go upon the lands, but instead sends or so allows his dog or dogs to go thereon in pursuit of game.

The gist of the leading English decisions on the subject, with footnote citations of the decided cases, may be found in Halsbury's Laws of England (1911), Vol. 1, page 395, where it is said: "The owner of a dog is not answerable in trespass for its unauthorized entry into the land of another, often described as an unprovoked trespass. * * * But if a man wilfully send a dog on another man's land in pursuit of game he is liable in trespass, although he did not himself go on the land * * *. So also if he allow a dog to roam at large, knowing it to be addicted to destroying game * * *." And, further, we find this, with supporting note citations of cases, in Halsbury's, Vol. 15, page 226: " * * * or, again, if a person while hunting enters on the land of another without his consent, he commits an act of trespass * * *. Further, the entry need not be personal in order to be actionable. A man who himself does not enter, but invites or authorizes others to do so, is liable to an action for trespass * * *. So, too, * * * the sending of a dog on to such land in pursuit of game * * *." (Italics added.) See Paul v. Summerhayes, 4 Q.B. (Eng.) 9; Beckwith v. Shordike, 4 Bun. 2092, 98 Eng.Reprint, 91; Baker v. Howard County Hunt, 171 Md. 159, 188 A. 223, 107 A.L.R. 1312; Annotation: 107 A.L.R. 1323; Annotation: 21 Ann.Cas. 915; See also 2 Am.Jur., Animals, Sec. 105, p. 770.

We have not overlooked the following statement to which our attention has been directed in 24 Am.Jur., p. 377: "The trespass of a hunter in pursuit of game on another's premises may be made a crime, but it has been held that such offense is not committed by the sending of a dog on the premises in search or pursuit of game." (Italics added.) An examination of the two cases on which this text-statement is based discloses that in each instance the court was dealing with a criminal prosecution for alleged violation of a statute making it unlawful to hunt on the lands of another person. This latter portion of the text-statement, " * * * but it has been held that such offense is not committed by the sending of a dog on the premises in search or pursuit of game," is based solely upon the decision in Pratt v. Martin (1911) 2 K.B. (Eng.) 90, 21 Ann.Cas. 914, wherein the statute at hand made it a criminal offense for any person to commit a trespass by "entering or being upon" any land in search or pursuit of game. There, the facts were that the appellant hunter was lawfully on the lands of one Babb for the purpose of shooting game. Appellant with gun and dog came to a brook which divided Babb's land from that of another. He waved the dog across the brook into a spinney--a thicket--where the dog "put up a pheasant" which the appellant shot and killed, the bird dropping into the spinney. The dog retrieved the bird and carried it across the brook to the appellant. There was no evidence he was ever off the land of Babb. The lower court convicted. On appeal, the judgment below was reversed upon the theory that the provisions of the statute, as a criminal enactment, did not expressly cover the act of sending a dog on another person's land. The case decides nothing as bearing upon the question of civil trespass in respect to such conduct. It is manifest that the decision in Pratt v. Martin is not at variance with the well-established rule that one who intentionally sends his dog on another person's land in pursuit of game may be held civilly liable therefor on the theory of trespass.

This view is in accord with the decision of the English Court in Paul v. Summerhayes, supra (4 Q.B. 9), in construing the proviso in Section 35 of the English Game Act of 1831 (1 and 2 Wm. 4, c. 32; Halsbury's Statutes of England, 1929, Vol. 9, p. 1079). The Act makes certain trespasses in pursuit of game criminal offenses, whereas the proviso excepts fox hunting from the provisions of the Act in these words: " * * * that the aforesaid provisions against trespassers and persons found on any land shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land, * * * " In Paul v. Summerhayes the appellants, who had been following a pack of foxhounds in the heat of chase, sought to justify entry on the lands of another by virtue of the foregoing proviso contained in the Game Act of 1831. However, it was held that the proviso was intended only to prevent the penal provisions of the Act from being applied against fox hunters, thus leaving the law of civil trespass unaffected by the Act. Said Lord Coleridge, C.J.--great nephew of Coleridge the poet--in delivering his opinion: "There is nothing, * * * in the Act to alter the common law with regard to trespass so far as concerns foxhunting." And Meller, J., by way of concurrence had this to say: "In any case the exception in favour of foxhunting in the 35th Section could only apply to the special provisions of the Act for the protection of game, and could not affect the question whether a trespass could be justified at common law in the course of hunting a fox, * * * "

In recognition that the law of trespass as fixed by the principles of the common law affords no immunity to fox hunting as a sport, it has become the established custom in England for the master of the hunt to raise funds, by subscription of the members of the hunt, with which to pay farmers for damage done their poultry, fences, crops, etc., by the hunt. These funds are known as "Poultry," "Damage," a...