¶1 The only question raised by the demurrer is whether an action of the case can be sustained. The defendant contends that, because of the propensity of pigeons to fly and to commit the grievances complained of, the proper action is trespass and not case. Assuming that an action of some sort can be sustained, as in the present state of the pleadings we must, we are of the opinion that case will lie, since the grievances complained of are merely consequential results of permitting the pigeons to fly at large, rather than results of force directly applied.
¶2 We think, however, though case is the proper remedy, it proceeds not so much on the principle of negligence, in permitting the pigeons to fly abroad, as on the principle embodied in the maxim, “Sic utere tuo ut alienum-non lócelas. ” Dictum of Pollock, B., in Farrer v. Nelson, L. R. 15 Q. B. 258. The standard of duty which one owes to another, for breach of which negligence may be predicated, is what persons of ordinary prudence would deem essential to be done in the particular circumstances of the case. Unless, therefore, the plaintiff can show that those who keep pigeons have deemed it necessary to restrain them from flying, in order to keep them from annoying their neighbors, it would seem to be very doubtful whether negligence can be made out.
¶3 Demurrer overruled and case remitted to the Common Pleas Division.