Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1886-02-18

II were In times past. The strict administra-
d tion OF the law by courts and juries still
l. continues; and while such remains the
J, rule, we may reasonably look forward to
the time when human life Gun be snid to be
g safe IN Delaware from peIsnhal yulenee.
y strict enforcement of the law l. tins hest
}, security to the peeple of the State.
The law, with respect TO defence OF prop
O erty, Is this: Where man Is Ia his own
hhbitltlon, or dwelling-pace, and Is thrra
, violently attacked by one who Intends 20
+ kill him, or do him some grievous bodily
Q harm, he need not take any steps to get out
= of his way. AS every mans dwelling g-house
is also his castle Of defence, or in the eye OF
the law, he need not retreat at all Che being
I IN contemplation OF law In the sumo situa-
tion as one attacked elsewhere than In his
, own house who has retreated until he can
do so no farther by renson OF n wall or
other obstruction that prevents him), but
: may slay his adversary thus attacking him.
But where the trespass of the wronR-doer
is not to the hahltation or dwelling, but
: upon or to the land only, there the law Is
dinerent. Before he can use any violence
to the trespasser, much less resort to a
deadly weapon, he must, II he wish TO get
rid of him, endeavor to do 80 by the use of
gentle means, such as persuasion or moder-
ate application of force; should resistance
be offered, he has the right To oppose TO
That resistance and sufficient force 10 over
come 1t, but never resort to the use OF "a
deadly or dangerous weapon until 1t IL
absolutely necessary to defend himself
against such In the hands of tho wrong
doer. An attempt at u forcible entry for u
| felonious purpose intoh dwelling house may
be resisted ut once by killing the offender,
IL that be necessary to tho defenee OF 1t.
But Il foreible entry into n tract of land, by
opening n closed gate, or pulling down
fence bars, or cutting through hedge or
| breaking n wall, as 1t docs not denote OF
itself an intention to do any act OF personal
| violence, does not warrant the possessor In
| resorting to any violence to cxpel the In
truder incommensurate with or out OF Just
| proportion TO thatused or threatened. The
i law furnishes an adequate remedy for this
/ offence, in punishing such q trespasser, not
/ only with the actual damages tho plaintiff
has suffered by his wrongful act, but will
also authorize jury TO give exemplary
damages, or damages by way OF punish
ment for his violent entry, where it has
| been attended by circumstances Indicating
| purpose, on the part Of the aggressor, to
| create terror In the mind OF the occupier by
show of arms, &c. The law requiring one
to avoid contact with an infuriated assail-
ant by retreating from him II he can, before
taking his life; or keeping out OF the way OF
one who intends to attack feloniously;
applies also to the occupier OF land, be he
owner or tenant, upon which trespass is
made, with this qualification, that In the
case OF an occupier OF land, there would be
u direct insult given by the act of one enter
ing with arms, which, II resisted by the use
of a deadly weapon, would be placed upon
different footing from that Of the other
cases supposed. Much Is allowed TO the.
weakness of human nature AS have before
pointed out, In giving way to gross provo
cation, or insult. This is the law with re-
spect to unauthorized entry upon another's
land, and entry attended by eircum-
stances Of great aggravationIas dis
play OF arms, &c. In case, OF a nero
trespass, that is where no violence by the
intruder is done or offered, and there Is no
reason to apprehend any, killing the In
truder would be murder, and OF the first
degree il facts could be shown that the
slayer armed himself to repel the trespasser
and used his arms without any serious re-
sistance on the trespassers part. The fact
of arming would show expectation of
deadly combat; and where one has reason
to expect dangerous attack, and takes no
steps to avoid 1t, but prepares himself for
It, and especially II he put himself In the
way of IL, and then kills his adversary who
attacks him, he is not only not justified or
excused in SO doing, but is punishable for
wilful murder.
But there are circumstances under which
when they exist, man has the right TO go
upon another's land. Suppose one travelling
along a highway or n street (Which is n
highway is suddenly attacked by a fero-
cious animal, and can only protect himself
by entering upon another's land, or into his
dwelling house through an open door; or
should so enter TO avoid the danger OF
runaway horse or team upon the highway;
the law would protect him In SO doing
upon the ground OF the existing necessity.
Suppose also, by some natural occurrence.
public highway should be obstructed, as,
for example, by trees blown across it by a
tempest, by great flood which has sub
merged or drowned it, or by a heavy fall of
snow which has filled or blockaded 1t; In
such cases, travellers along such highway
har IA
the right to enter upon and travel
across the adjoining lands, whether
inclosed or not, in the pursuit Of their
lawful business, on occasions. This right
Is called a way OF necessity, to which the
private right OF exclusive possession must
yield the whole of the adjoining land, so
long as the necessity exists. During the
continuance of such necessity-that is, so
lorg as the highway shall remain OBJ
structed-the right OF travel. or way of me-
cessity, exists, and may be used by way
farers without molestation from the oe-
eupier. But this right must be exercised 80
as not to do any wanton or unnecessary
damage to him, or his crops: though 1t Is
not for him to say what the route OF the
public travel across his land shnll be. High
ways "are for the public SERVICE" as was
said by a great judge, "and II the track be
impossible, II is for the general good
that people should be entitled to pass In
another line." 1t is upon that consideration
the owner or occupier of the land should
forbid the public from using his land us
way of necessity, in case of obstruction OF
the regular highway; are the public bound
to heed himp Certainly not; no more than
they would beto obey his orderthat, in travel
ing along the public highway bounding his
land, they should travel on the other sideof
the middle line of 1t and not on his side,
where his right Of soil is. Such right ex-
tends TO the middle of the highway, subject
to the public easement or right OF travel,
with which he has no authority to Interfere.
The way of necessity then, as have de-
scribed it, across or over a private owners
land, being the same for the public as that
they enjoy upon or over the public
fSSads or hhshTass s,rht 4 tSs + ss evident NJ
the public or some member oft, no more
exists in the one case than In the other.
1t follows, then, that II such owner should,
| though upon his own land ut the time,
undertake to prevent anyone, who had oc-
casion to travel the obstructed highway,
from entering upon and using his land to
avoid the obstruction, he would be wilfully
endeavoring to hinder or impede such an
one from exercising and enjoying COM
| mon right to which as part OF the public,
| he wns entitled. During the continuance
of the obstruction to tue public road, the
owners land, or such part ol IL as is neces-
| sary to be used In lieu OF such road, be-
comes u public highway like the other.
When therefore he attempts TO impede any.
ono in using it, he Is wrong-doer; nnd If
| such attempt is manifested by personal acts
| for example laying his hands upon
him TO prevent his going upon the
land, or stopping him while being therein
course, of travel, or resisting the others
! effort TO open gate across or at the en-
| trance of the way thus made necessary, or
| to let down the bars ut an outlet, he is the
| aggressor and must take the consequences
| Of anything that befals, by reason of his un-
/ authorized act. do not mean to be under
/ stood to say, OF course, that the party re-
! sisted (that is the traveler) would have the
| right to kill him instantly, or do him great
| bodily harm with n deadly weapon butIdo
| mean to say that the party resisted would
have the right to oppose amy force used
towards him by his opponent, and TO use
| all necessary means 10 overcome 1t; and ii
/ his life were attempted in the conflict, he
would have the right in his own defence,
to take that oil the aggressor, and
| If such aggressor had gone into the con-
fiict unarmed, and the supposed trespasser,
having arms sought to SHY him, he might
slay the other If he could and protect him
self under the plea OF self-defonce. But II
he had prepared himself beforehand with
arms, and had gone to the place where the
traveller would enter to enjoy the way OF ne
eessity, Tor the purpose, II necessary. Of
using such arms in any conflict that might
arise between them over the right and such
conflict had arisen and he had used them to
the destruction OF the traveller, the Staying
would neither be iustiilable, nor excusable,
nor would il be manslaughter, because of
the wrongful act OF the owner or occupier,
| In, onnfhar in hia rfOht fha