Wood v. Stotski

Bond, O. J., delivered the opinion of the Court. The one question raised on this appeal is whether, on the testimony, the court could rule as a matter of law that a killing of plaintiff’s dogs while trespassing on the defendant’s land was justified as a reasonable exercise of force. The lower court so ruled, and directed a verdict for the defendant on the ground that it was so justified. But this Court has concluded that the question should have been left to the jury for their decision. The testimony is conflicting on almost all the crucial points. That of the defendant tended to show provocation in previous molestation and disregard of his rights, ruthless damage and destruction of his crops by hunters, and frequent necessity for driving the hunters off. The plaintiff *510 himself testified to some previous difficulty between the defendant and himself and with the plaintiff’s brother, with an assault on defendant by the latter. And the defendant’s son testified that on the night of the shooting the men and dogs had been walking aro-und a field of tomatoes. From the whole testimony, however, we think a jury could be permitted to find that the plaintiff-with five other men went with plaintiff’s dogs on the land of the defendant, at night, in pursuit of a raccoon, and that the plaintiff had hunted there previously; that the dogs were duly licensed, and although the lawful season for such hunting had not yet begun, the plaintiff and the men with him were merely exercising the dogs without any intention of killing or capturing-the raccoon pursued; that they entered -only a swamp and went only to a tree where a raccoon was treed and the dogs were barking; that the defendant and his son came down and ordered the men off his place and they, in fear, put their lights out and hid in the swamp; that the defendant then ordered his son to shoot the dogs, and the son did so. Whether the jury would have believed the evidence to- this effect it is not our province to inquire. There was such evidence, and they were at liberty to- believe it. It is not admitted by the plaintiff that he or his dogs had caused any of the previous damage complained of, and he denies that they went into- the field this night. And we do not understand the defendant or the witnesses produced by him to identify these particular dogs as having caused him any damage previously. Indeed it would not be within the province of the court to- find the previous molestation and damage as a fact. It is not disputed, and could not be disputed, that the defendant was entitled to take any measures reasonably necessary to protect himself and his property from injury, and that if so- necessary he might kill trespassing dogs. A landowner is not required to- provide a hunting ground or playground for his neighbor and the neighbor’s dogs;,he may by appropriate means have both kept off, and may him *511 self use whatever means may be reasonably necessary to prevent injury to persons or property on his land, including tlie killing of the dogs, if that should prove necessary. The decisions are not in entire agreement in their statements of the legal, principles governing the problems which arise, but according to the weight of authority a landowner ma.y not kill the dogs merely because they are on his land, that is, when they are not imminently endangering person or property. And the question whether in a particular ease there was .such imminent danger, making it reasonable to kill the dogs, is almost always one for the jury. The burden of proving the justification for killing is upon the defendant. Breedlove v. Hardy, 132 Va. 11; McChesney v. Wilson, 132 Mich. 252; Hodges v. Causey, 77 Miss. 353; Dinwiddie v. State, 103 Ind. 101; Marshall v. Blackshire, 44 Iowa, 475; Simmonds v. Holmes, 61 Conn. 1; Dunning v. Bird, 24 Ill. App. 270; Lipe v. Blackwelder, 25 Ill. App. 119; Hubbard v. Preston, 90 Mich. 221; King v. Kline, 6 Pa. 318; Brill v. Flagler, 23 Wend. 357. And see generally the notes in 15 L. R. A. 250; 40 L. R. A. 510; 19 L. R. A. (N. S.) 835; 28 L. R. A. (N. S.) 673 and 10 A. L. R. 689, 691. And for a review of older cases, and even more, for a discussion of the meaning of “imminent danger,” in the statement of the rule just made, the opinion of Doe, J., in Aldrich v. Wright, 53 N. H. 398, is to be considered. And under this rule the jury could weigh all such facts as previous molestation and annoyance, and the effectiveness to be expected from any other means of prevention, as well as the facts of the situation presented to the defendant on the night of the killing, and any provocation in that situation. The defendant urges a distinction between this case and one of trespass by unattended dogs, on the ground, as we understand it, that the men were the real trespassers, that the dogs were their instruments merely, and could not be expected to> leave the land by any driving or persuasion of (lie defendant so long as their master and his companions maintained their position in hiding there. ' But, as we view *512 it, that fact might serve to show only provocation and reason for exasperation, and increased difficulty in the defendant’s situation, if there was injury threatened and to be prevented, and it would not enable the court to say that as a matter of law it was sufficient to justify the killing of the dogs. It may have been, or it may not have been. The jury should decide. Judgment reversed and a new trial awarded,, with costs to the appellant.