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1 N.C. 119

Millen

Decided July 1, 1793

TRESPASS for chasing sixteen sheep with a dog in a place called Bessils, in such a vill. The defendant pleads not culp. and afterwards as to the chasing, says that the sheep were on his own land, damage feasant, that his land his close Bessils, without being separated by any fence or hedge, and that with a small dog, he chased the sheep out of his own land, in said Bessils, and the dog, contrary to his will and inclination, chased them on Bessils per paululum tempus.

Decided 1793-07-01

Crew, C. J.

¶1assented, and cited Knivet’s opinion in the case of the pursuit of a pheasant, and 6 E. 4. that putting thorns on one’s land, so that they fall on another’s, is not justifiable. But those are not like this case, for it is impossible to recall a dog or a horse, if he will not obey, and in the 6 E. 4. if it was impossible that the thorns should not fall on the other’s ground, he shall be excused; and the opinion in the last case that trespass lies, seems hard, because thorns fall ipso nutu, and there is a difference between a dog and other animals.

Doderidge, J.

¶2No doubt. No action lies. I may chase cattle out of my land, though a stranger cannot. 12 H. 8. In this court in Popham’s time, one justified the pursuing of a fox on another’s land, which he started on his land; for it is a noisome animal. Likewise of a wolf. Bracton says that a man outlawed caput lupinum gerit, that is to say, any one may pursue him. 9 E. 4. If trees grow close to my hedge and the fruit hangs over my neighbour’s land and falls there; I may justify the taking it up, provided I do not make a too long stay, and do not destroy his hedges. For fruit naturally falls: and necessity justifies me.

Jones, J.

¶3Certainly; one may chase cattle out of his own land with a dog; so may a commoner: and if my dog chases them on another’s land contrary to my will, trespass does not lie: and the party may chase cattle out of his land, on that of the owner of the cattle, but not if it be sown with corn: and yet in cases of necessity, he may chase them on the owner’s corn land. Yet; it still seems that the owner of the cattle may have trespass in such cases, for it is not lawful to procure an easement to one’s self, to the injury of another.

¶4Doderidge, J. Here is a damage to the owner of the cattle, but no injury, and there cannot be a trespass unless there be both an injury and a damage.

¶5Judgment for the plaintiff.

¶6Joderidge, J. If a butcher drives sheep in the streets of London, and they run into the house of a stranger: the butcher may justify taking them out of the house. Antea, p. 13. Poph. 161, Bendl. 171.

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