The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-05-18

against them was affirmed. and then to the
Court OF Appeals, where the case was heard
In the First division, and the conviction was
set aside on the ground that the jury should
layo been instructed that the defendants
were not guilty OF any offence IL they broke
M the boat In defence OF tho possession OF
tho property under their charge.
The opinion OF the Court OF Appeals Is
written by Judge JOHN CLINTON GRAY oil
this city. who says:
THE intent TO destroy undoubtedly existed but II
the Jury sond believe II to be shown BY tho evidences
tia; tho defence Of tho possession OF prop
er;y, the critrinay was lncsing which constitutes
TIE pun Shabe offence against the people In this case
~ was shown by tho evidence that ktSEs Efforts 10
prevent Davis from u.inS his property NY piacihe INC
Dat upon IL. had been pctss:entJ opposed anu aehcd
II II had been asrant ms actnay To oDNtruc'
uroncr and riritIui enjoyment and use OF his prop
erty wa4 KANE bound to submit to 1t or to ira'e tha
inntter in tile courts2 cannot think so the owner
shin AMI session OF property confer certain fg"'
10 defend thu. rosscssion and am unable to perceive
wherein lies the essential difference in principle be-
tween the defence of IL which results in an assault anu
battery and that which results in the dearncton OF tho
mean used to invade and interfere win that possess
sion. Whether tho act done was really IN dctehcoo Oh
ones possession. its character hnd motive presehs
question ch should be submitted TO the jury"
Tho case was therefore sent back TO Suf-
folk county for now trial.
II has just been tried second time Mt
Riyerhcad in the Court OF Oyer and Iermi-
ner, to which it was transferred from tho
Court of Sessions. Tho law was laid down
to tho jury precisely MS 1t Is stated IN
the opinion OF the Court of Appeals. but the
case will have to be tried again next Octo-
Der, inaslnuch us the jury. though kept
out n long time, were unable to agree.
1t is to be noted that the decision OF tho
Court OF Appeals was not unanimous. Chlef
Judge EARL dissented. holding that KANE
was not justified. under any view OF the
facts which tho evidence would sustain. in
going SO far as to destroy his neighbours
bont. The learned Chief Judge said he
thought that IL DAVIS persisted in unlaw-
fully putting his boat upon the pond the
owner of the pond could have brought re-
peatcd suits for trespass. and when it mp
reared that such suits would not adequately
protect his pond. he could have maintained
an equity suit to restrain DAVIS from plac-
ing tho boat in the water. Judge DENNIS
O'BRlES concurrcd in this view. but Judges
ANDREWS, FINCH. and PEcKEAM agreed with
tho opinion expressed by Judge GRAY to tho
effect that tho pond owner might lawfully
destroy the means by which tho trespass
was committed. If he did SO in defence OF
his possession; and this must now be
deemed the established law OF the
State In respect TO this particular
case and similar cases. We are not dis
posed to criticisc or condemn the rule thus
adopted. provided is limited in practice so
as to apply onlywher the destruction OF tho
personal property used as the instrument
of invasion. is shown TO be fairly and reason
ably necessary to the protection OF tho
premises which arc invaded If one person
insisted upon putting his ash can into his
neighbor's front yard and kept replacing it
there after it had repeatedly been removed.
1t would be absurd to require him to instl-
tute lawsuit in order to keep it out. He
ought to have the right to smash ifhe could
not get rid of it in any other way. But he
ought not to resort to destruction until he
had tried milder methods without avail.