Wood v. LaRue

• Decision Date: 10 April 1861
• Citation: 9 Mich. 158
• Court: Michigan Supreme Court
• Parties: Jotham Wood v. Peter LaRue

9 Mich. 158

Jotham Wood v. Peter LaRue

Supreme Court of Michigan

April 10, 1861

Heard January 21, 1861

Error to Jackson circuit.

LaRue brought trespass against Wood in justice's court, and recovered twenty dollars, the value of a cow. Wood appealed to the circuit court, where the cause was tried without a jury, and the circuit judge found as follows:

"That on or about the fifteenth day of May, 1858, the defendant was the owner and occupant of a farm in the town of Blackman county of Jackson. That on the same day the plaintiff's cow and a number of other cattle came from the public highway, through a pair of bars which were down, and without the leave or license of defendant, into and were upon and in the field of the defendant, being a field of barley, then and there growing on said farm there situate, and while said cattle were so upon said land, the defendant, for the purpose of driving said cattle off his said land, set his dog upon them, and the dog then and there chased said cattle, by means whereof the cow of the plaintiff was thrown by said dog and fell, breaking or otherwise injuring the shoulder of said plaintiff's said cow; that the plaintiff's cow was injured to the amount of twenty dollars.

"The conclusion of law by the court is that the defendant is a trespasser, and liable to the plaintiff for the damages aforesaid."

Judgment being rendered for LaRue on this finding, Wood brought error.

Judgment reversed, and the plaintiff in error recovered his costs in this court and in the court below, as well as before the justice.

Blair & Gibson, for plaintiff in error, argued that the action should have been case instead of trespass; that the defendant was liable at all only on the ground of negligence, which must be alleged and proved (2 Comst. 515; 4 Cow. 352; 13 Johns. 339; 1 Denio 495); and that as the cow was a trespasser on defendant's land (2 Mich. 260; 3 Mich 163), he is not liable unless designed or wanton and malicious mischief is shown: 1 Cow. 78; 2 Mich. 262; 4 Denio 259; 7 Met. 274; 10 Met. 371; 17 Johns. 99.

Johnson & Higby, for defendant in error:

The plaintiff was bound, to know what his dog was capable of doing, and if he chased cattle with a dog capable of doing injury, he did so at his peril: 1 Freeman 348; Cro. Car., 254; Bac. Abr., tit. "Trespass," D, 4. The design of the party is not material: Bac. Abr., tit. "Trespass," D, 2.

Trespass was the proper action: 1 Dev. 185; 7 Yerg. 38.

OPINION

Christiancy J.:

The plaintiff in error excepts to the conclusion of law drawn by the circuit court from the facts found by the judge.

The finding of facts, so far as this question is involved, must be considered as in the nature of a special verdict, and, to warrant the conclusion of law, must, in this case, contain all the facts and circumstances necessary to constitute the defendant a trespasser.

Having set on the dog, we think the defendant, if liable at all, was liable in this form of action.

But, it is clear, the plaintiff's cow was wrongfully on the land of the defendant (below) when the dog was set on for the purpose of driving her off; for, though the act of March 17, 1847 (Comp. L., § 628), prohibits an action for damages done by the cow, it has no other effect; and it leaves the defendant's rights, in the present action, as they would have stood at common law under like circumstances: Williams v. Mich. C. R. R. Co., 2 Mich. 259.

The cow being wrongfully on the land, the defendant had a clear right to drive her off by any of the ordinary means to which a prudent man would naturally resort; and for this purpose we think he had a right to set a...