Whittaker v. Stangvick

• Decision Date: 22 March 1907
• Docket Number: 14,972 - (163)
• Citation: 111 N.W. 295,100 Minn. 386
• Parties: JESSIE WHITTAKER v. M. STANGVICK and Another
• Court: Minnesota Supreme Court

111 N.W. 295

100 Minn. 386

JESSIE WHITTAKER v. M. STANGVICK and Another

Nos. 14,972 - (163)

Supreme Court of Minnesota

March 22, 1907

Action in the district court for Otter Tail county to enjoin defendants from constructing certain covers or blinds, from hunting or shooting ducks or other water fowl therefrom, and from shooting over or across plaintiff's land. The case was tried before Baxter, J., who found in favor of the defendants. From an order denying a motion for a new trial plaintiff appealed. Reversed.

SYLLABUS

Increased Care Necessary with Increased Hazard.

As the hazard from the use or threatened use of dangerous instrumentalities increases, the responsibility of the person employing them becomes stricter, and may amount to insurance of safety. All remedial resources of law and equity may be exercised to prevent peril, by reason of such use, to person or property, or to prevent conduct likely to result in breach of peace.

Trespass.

To constitute trespass to land, neither the extent of the damage nor the form of the instrumentality by which the close is broken is material.

Injunction against Shooting.

Shooting guns over another's land, so as to cause considerable damage, is an enjoinable wrong.

Injunction against Shooting.

The court found as facts that plaintiff owned a narrow duck pass between two navigable lakes; that defendants threatened to erect blinds in front of said pass, three hundred twenty five feet away, with intention of shooting ducks flying over the pass; that in so doing defendants were liable to shoot over plaintiff's land, and to considerably impair the value of plaintiff's shooting privilege. The court concluded as a matter of law that plaintiff was not entitled to an injunction. Held error.

Parsons & Brown, for appellant.

N. T Moen and F. H. Peterson, for respondents.

OPINION

JAGGARD, J.

The plaintiff and appellant sought to perpetually enjoin defendants and respondents from constructing covers or blinds on the surface of a lake in front of a strip of land, to which plaintiff claimed ownership, separating two navigable lakes; from hunting or shooting ducks or other water fowl therefrom; and from shooting across or over the strip of land. The court ordered judgment for the defendants, after trial. This appeal was taken from the order denying a motion for a new trial. The essential question here is whether the decision was justified by the evidence and was consistent with law.

The court found the facts as follows: The plaintiff owned the long, narrow strip, and accretions, extending to a creek connecting the waters of the lakes, which formed what is known as a "duck pass." Although there was a public highway over the duck pass, by virtue of an agreement with the supervisors of the township the plaintiff had the right of fishing and hunting thereon to the same extent as though the road had not been laid out. The defendants and other persons wrongfully had previously gone on plaintiff's land at the highway and shot ducks and water fowl, and now threaten to continue to do so. The effect of the acts was to practically monopolize the shooting privileges and to largely impair the value of the privileges to the plaintiff and her guests. The defendants had been previously restrained by an order of the district court from going upon the highway for the purpose of hunting, and from hunting or shooting ducks or other water fowl upon the highway. "That the said defendants have heretofore erected, and intend and threaten to hereafter erect, upon the surface of Upper Ten Mile lake, directly in front of the said pass, and at a distance of about three hundred twenty five feet from the shore line thereof, certain covers or blinds, with the purpose and intention of shooting therefrom the wild ducks and other water fowl flying over said pass, and that in hunting said game defendants are liable to shoot over plaintiff's said land. That said lake is of large extent, and it is not necessary for the mere purpose of hunting or shooting the said wild fowl, that said defendants should locate such cover or blinds at the place above mentioned. That the probable result of such acts on the part of the defendants will be to injuriously affect the facilities for shooting wild fowl afforded by said pass; and as a consequence thereof the value of said shooting privileges will be to a considerable extent impaired."

There was testimony to the effect that a shotgun would carry shot "probably four hundred feet, maybe more than that." In consequence, when persons in the blind would shoot towards plaintiff's place, "the shot could not help but drop around [plaintiff's] place, on the point, in the woods, or in the timber, or across this point here. A certain amount of the shot would go over the pass. * * * From thirty to fifty per cent. of the shot would go over the land and on the pass. It depends on the winds, and which way the ducks fly. * * * In shooting ducks flying from the north, south, some of these ducks in the ordinary course of shooting naturally would fall when they were killed, on this pass."

1. The first question is whether the facts found show a trespass. Defendants urge that the falling of the shot and of ducks on plaintiff's land not having been shown to "become a nuisance to her, certainly could not be sufficient to constitute a trespass on the part of the defendants. The old maxim that the law does not concern itself with trifles might well be invoked here." This contention involves a misapprehension of the law of trespass.

With respect to damages as an essential, the common law recognizes two kinds of actions. In the first class there is a direct invasion of another's person or property without permission, which is actionable per se, or which gives rise to a presumption of at least some damage, without proof of any actual damage. Unpermitted contact with the person constitutes assault and battery. Unpermitted invasion of premises constitutes a trespass quare clausum fregit. In the second class, actions on the case, in which the damages are indirect and consequential, there can be no recovery unless the plaintiff shows, as an essential part of his case, that damages, pecuniary in kind, proximate in sequence, and substantial in extent have resulted. In trespass quare clausum fregit, it is immaterial whether the quantum of harm suffered be great, little, or inappreciable. It is true that in McConico v. Singleton, 2 Mill, Const. 244 (S.C. 1818), Mr. Justice Johnson held that the owner cannot prevent others from hunting wild game on uninclosed and uncultivated lands, because to recover in trespass you must prove some actual injury. One quaint reason assigned was the public concern that there should be hunters to form a competent militia to oppose that great danger to free institutions, a standing army. It is elementary that the general rule is otherwise. For example, in Patrick v. Greenway (see Mellor v. Spateman, 1 Saund. 346b), the defendant angled in plaintiff's several fishery, but caught nothing. Plaintiff had a verdict, which was sustained because of the infringement of the right which could hereafter be evidence of the exercise of the right by the defendants. And see, as to fisheries, 13 Am. & Eng. Enc. (2d Ed.) 584. As to general rule, Cooper v. Crabtree, per Jessel, M.R., 20 Ch. Div. 592; Feize v. Thompson, 1 Taunt. 121; 1 Street, Foundation of Liability for Tort, p. 19; 46 Cent. Dig. "Trespass," § 15, col. 271; Id. § 141, col. 480. Nowhere is the doctrine better expressed than by Lord Holt, in Ashby v. White, 2 Lord Raym. 938, 1 Smith's Lead. Cas. 268: "If a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action; for it is a personal injury. So a man shall have an action against another for driving over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there."

It is also entirely immaterial by means of what instrumentality the trespass is committed. See 46 Cent. Dig. "Trespass," § 8, col. 256. One maliciously annoying another by means even of loud noises, consisting of pounding on tin pans, etc., and thereby injuring the health and business of the latter, is guilty of trespass and liable for the injuries sustained. Shellabarger v. Morris, 115 Mo.App. 566, 91 S.W. 1005. To the same effect, see Donahue v. Keystone, 181 N.Y. 313, 317, 73 N.E. 1108 (holding specifically that escape of gas from street mains may constitute a trespass), and Adams v. Rivers, 11 Barb. 390. "No doubt," said Landon, J., in Forbell v. City, 164 N.Y. 522, 526, 58 N.E. 644, 646, 51 L.R.A. 695, 79 Am. St. 666, "trespass may be committed by the projection of force beyond the boundary of the lot where the projecting instrument is operated. Injuries caused by explosion are familiar instances."

More specifically, in the celebrated case of Pickering v Rudd, 1 Starkie, 56, 1 Ames' Cases on Torts, 42, Lord Ellenborough said: "I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close. The learned judge on the circuit with me doubted upon the point, but many with whom I afterwards conversed on the subject thought I was right, and the judge himself who at first differed with me was afterwards of the same opinion; but...