Wood v. LaRue

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 tplaintiff’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 coav, 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, Ave think he had a right to set a dog upon her; unless there was something in the size, character or habits of the dog, or in the mode of setting him on or pursuing, which would negative the idea of ordinary care or prudence. And if he exercised this right in good [161] faith, and was not wanting in ordinary care and prudence, we think he could not justly be ¡j held responsible for the injury which might ensue. Such was expressly held by the Supreme Court of Vermont to be the law in Clark v. Adams, 18 Vt. 425, and again in Davis v. Campbell, 23 Vt. 236. In the first cited case, Royce J. says: “I have met with no decided case or other authority, which has denied the right of a party, at common law, to use a dog in driving from his own grounds cattle of another, which were wrongfully there doing damage :” and in favor of this right he cites: 1 Comeyn’s Dig, 411 (citing “R. Lat, 199,” and Mullen v. Fandrye, stated by Aston J. 4 Burr. 2994, from Popham 161, which I think sustains the right). The finding of the court shows nothing of the size or character of the dog, nor of the mode of setting him on, nor any lack of ordinary prudence and caution on the part of the defendant. It is not necessary to decide what might have been the conclusion, if the finding of facts had shown that the dog had seized or wounded the cow, or thrown her by force; for, though the language of the finding appears, at first view, a little ambiguous, we are satisfied it does not fairly warrant this construction. The language is, “ and the dog then and there chased said cattle, by means whereof ” (as we understand the language, by means of such chasing)” the cow of the plaintiff was thrown by said dog, and fell, breaking or otherwise injuring the shoulder of said plaintiff’s said cow.” This is not the language which would naturally be used, had the cow been seized by the dog and thrown by force. The facts stated in the finding do not warrant the conclusion of law, that the defendant was a trespasser. The judgment must therefore be reversed, and the plaintiff in error must recover his costs in this court and in the court below, as well as before the Justice. The other Justices concurred.