Trover, for two horses. The plaintiff’s father and one Humphrey formerly owned farms in Langdon adjoining each other, the line between them extending some one hundred rods; and they divided the fence on this line, Humphrey taking the north half and Walker the southerly half to make and keep in repair. This division was in writing, was in; proper form, and no objection was made to its validity as between the original parties.
Decided 1874-06-05
¶1The question was, whether the defendant's acts in taking up the horses, etc., amounted to a conversion.
¶2Two things must be certain: (1) The defendant was not bound to take upon himself the perils of an attempt to impound the offending animals: he might forgive or waive any claim he had for damages; — (2) he was not bound to stand by without raising a hand, and see them destroy or injure his brood mares and young colts. He had driven them into the highway once, and started them towards home; but this was ineffectual, for they returned directly to the same mischief again. Surely he might do something to protect his property against a lawless and persistent invasion of that sort. What should it be? He must decide for himself, in the first place, upon the proper course to be pursued; and he had a right to be governed by all the circumstances under which he was compelled to act, — the disposition manifested by the plaintiff's horses, the character and value of his own property which was threatened, the nature and imminence of the danger to be averted. It was ultimately for the jury to say whether the course he took was reasonable, such as a fair man, governed by a just regard for the rights of his neighbor as well as a proper and legal purpose to protect and defend his own property, might take. And in deciding that question the jury ought to be placed in his position; that is, they ought to have all the light thrown upon his act by the circumstances under which it was done.
¶3The defendant did not assert any dominion or ownership over the horses. He seasonably notified the plaintiff of what he had done and invited him to come upon his premises and take the animals away. If the course he took was reasonable, and reasonably necessary for the protection of his own property, there was no conversion. That was a question for the jury, provided there was *663
any evidence upon which it could legally be found that the act was unreasonable. I think the evidence excluded should have been received. Whether a verdict should not have been ordered for the defendant we need not inquire, as that question is not raised by the case.
