The Baltimore County union. [volume] (Towsontown, Md.) 1865-1909, 1903-11-21
Correspondence Baltimore County Union.
TRESPASS BY DOMESTIC ANIMALS.
An Expensive Law Suit Growing Out OF
a Trespass-Considering Some REM
edies-Dogs and Chickens Make
Trouble-Don't be Too Quick
With Your Gun, etc., etc.


fences, and with the exception of party fences
we found that the general law of Maryland i'm
posed upon the owner of cattle the duty TO
fence them in, and not upon the owner OF lano
the duty to fence them out. But it so happens
that lawful rights are not always respected, nor
legal obligations fulfilled and so Mr.. Digges' OF
Charles county, awoke one fine morning to dis
cover the dark bay mare of his neighbor, Mr..
Knott, in his best field of grain, much to ner
delight but to his infinite disgust. There were
three remedies for immediate relief open to
Mr.. Digges, (a) to impound (bl to distrain (c)
to simply remove the mare from his premises
by driving her off. This last remedy Mr.. D1gges
resorted to, but in his zeal he not only rode the
mare off his farm, but past dozen other farms,
for distance of about three miles, and at such
a speed that the animal, when finally found by
Mr. Knott, had been rendered unfit for service
for six months and was considerably damaged.
Which indiscretion the part of Mr.. Digges
cost him law suit and $500 beside.
Considering the remedies above mentioned:
(a) By an act of the Legislature passed in 1882
the owner of land can seize cattle found thereon,
doing damage can advertise them for two weeks
and at the end of three months, sell at pubic
auction. A somewhat tiresome proceeding, and
if the cattle are good feeders, more or less dam
aging to his feed pile. As this Act makes no
mention of service of notice of the seizing OF
Sumption is that here the owner must be either
unknown or out OF the State .ro
closures of any person in this State, be dis
trained, while doing damage, the 0a0ner Of aohich
Is Enoa0n, and the owner thereof does not ten
der compensation for the damage sustained by
such person within five days next after such
distress taken, and notice given," then the
owner of the land may go before Justice of
the Peace and ten days after setting up notice
of the sale in three public places, may sell at
public auction.
cd to- being much the more expedient of the
two and more fair to the owner of the cattle, for
here the person taking the cattle up must serve
notice of the distraint upon their owner, and
must satisfy the Justice of the Peace of the SER
vice of such notice before he can proceed with
the sale. Despite their expediency, however, it
is a matter of inquiry why such proceedings in
stead of entrusting the service of the notice to
the angry land owner, should not call for SER
vice by the constable of the usual writ of sum-
mons, together with copy of the complaint of
the injured party. The sovereign law of our
State declares that mo person shall be deprived
of law" and due process of law means the SER
vice of a writ by constable, or other officer of
the law, and not by the complainant in a suit.
This question very seriously concerned the pur-
chaser of the cattle at public sale in Iowa,
where the owner of the cattle claimed them on
the ground that the sale was void for the rea-
sons above stated. Itwas held that his claim was
good and that the cattle still belonged to him.
IF my neighbours horse, known to me as well
as nv own property, comes upon my land. he is
not liable to be taken III by me- for as to me he
is not an estray. And yet that same horse 90
ing upon premises where he was not known,
must, as to such stranger, be an estray The
fact of coming upon the premises is not alone
sufficient to warrant the taking up, but the ami
NAL must be an estray, that is, an animal whose
owner is unknown, at least to the taker up. Any
animal is liable to be taken up, but not unless it
is an estray, and if known to the taker up, it is
or to treat it as beast wandering or without
an owner. one wandering at large or lost, or
whose owner is unknown. And yet. that is
what ia meant nv eStrQV. The word ifsolf
implies this, and all the provisions of the law,
requiring notice in the newspaper, are thus
made useless if any one may take up his neigh
boris horse, the ownership being well known,
because found upon the premises. The given
object of the notice is to find the owner, and
yet why this when the owner is already known"
(cl The remaining remedies open to the owner
of the land are those given by the common law
not to be found in the statute books, but in the
decisions of the courts and the customs of the
people. 1t is in the exercise of their common
law rights that controversies have most fire.
Quently arisen between neighbors. While the
amounts of money in controversy are usually
small, the principles are often important, and
of the Subject ths Broad prncpe tba
there is no inherent right to kill domestic ami
NAL simply because it is found trespassing
another's property, for such wide license would
inevitably lead to the wanton destruction of
property when the destroyer himself had suf-
e on for Ug nd ct bst e
Exodus, Chapter q, verse %, Moses, the great
est of all lawgivers, declared that, IF one mans
u
the lice 0T, and divide the money of it, and the
dead OK also they shall divide" And in verse
36, '.Or if it be known that the OK hath used to
push in times past, and his owner hath not kept
hn1 H. - e., s s'rs'y y nc, s anu me dead
the useless killing of the offending OK, but left
the owner of the dead OK to bear his loss with
out compensation, other than the poor satisfac-
ton of seeing his neighbours OK killed, our law
is not only more humane but more practicable
than the Mosaic law. If my neighbours pear
tree overhangs my fence and the shade from the
branches kills flowers. / have a Darfapf RIGHT
to cut off all such overhanging branches; but
if the tree is in no manner doing me harm, then,
while may pluck off such fruit as hangs upon
my side of the fence, yet cannot eat it. or de-
stroy it, but must throw it back to him, for here
the fruit, although trespassing upon me. was
right to destroy it. The point here made is well
illustrated by the dispute which arose between
Mr.. Clarke, who kept number of very fine hens
and suffered them to run at large, and Mr.. Keli-
her, who occupied the adjoining lot. The hens
ran into Mr.. Kelihers grass. and made nests
therein to some extent, wearing a small path
from the fence. Mr.. Keliher politely requested
Mr.. Clarke to shut up his hens and he threaten
neglected and declined to do SO, and the hens
continuing to go upon the forbidden grass, Mr.
Keliher openly, with stick, killed the whole
dooryard. Mr.. Keliher was held unwarranted
in the killing of the hens, and without legal
justification, as the destruction of valuable
property was not necessary to the protection of
his rights, and that the notice given by him of
his intention to kill them was mere threat to
The question then arises, as against animals
difficult to fence against as dogs, chickens, etc..
when is killing or injuring justif1able. if ever?
This question is well answered by the echo of
dispute from the Buckeye State. 1t seems that
Mr.. Anderson owned fine, imported Red Irish
setter; named Bridget and two pups from her.
fancy ran toward chickens of the thoroughbred
Plymouth Rock variety. During the season
MIR. Smith lost 80 of his best fowls, he believed
by dogs as he had seen dogs similar to those of
Mr.. Anderson on the premises, but he was not
sure that they were the same dogs. He was not
even sure that the chickens he had lost were
killed by dogs. He did know however, that on
the morning of August 9th he heard disturb
ance amongst the chickens, and on looking out
saw Bridget with one of the hens in her mouth
in the act of jumping over the fence and the
two pups in his yard. He called out to them.
the street. He then took his revolver and ran
out of doors, to find that the two pups had in
the meantime got through the fence and had
hold of the hen worrying her, when he shot
them. Mr.. Anderson promptly sued Mr.. Smith
for the loss of his dogs, but Mr.. Smith was held
justified in shooting them. "Ths case. so far as
the amount in controversy is concerned, is very
insignificant, but considered as involving the
questions of the right to defend animate prop
erty against the attacks of other animals, and
the extent to which person may lawfully go
in such defence, it becomes of considerable in
terest ana importance: Inc law from the earii-
defend his property against the unlawful acts
of man or beast, the question in such cases not
being whether such right of defence existed
but whether it was properly exercised in the
given case. The most that can properly be said
as q rule of law is, that there must be an apparent
necessity for the defence honestly 6elieUed TO be real
and then the acts Of defence must In themselves be
real. If man should find his neighbours cat in
his poultry yard, killing his chickens, it might
be reasonable that he should for the preserva-
ton of his fowls, if the necessity was apparent
shoot the cat, while if valuable horse of the
same neighbor was found in the yard crushing
the life out of the chickens, it might not be
reasonable to shoot the horse, even if he could
not protect his fowls otherwise. But if the
same horse should be found in yard where
there were other horses, and while wrongfully
there should attack another horse equally valu-
able. and it was apparent that the horse attack
ed would be killed, would it be unreasonable
for the owner of the latter horse to protect his
own property upon his own premises, even if
the life of HIS neighbours horse should be sacri
feed to preserve that of his own2 The law re-
CARDS the right of the slayer to his horse, in the
case supposed, as sacred as the right of his
neighbor to his property, and his horse being
where he had lawful right to be, his owner
must have the right to protect him, so long at
least the consequences Of The necessary acts Of de-
fence are not disastrous TO his neighbor than
the consequences Of not acting mould be 10 himself"
And so, while Mr.. Smith was justified in the
killing of the dogs, there is clearly apparent
conservative spirit which regardes killing or
manning as the last resort, and then only when
it is question of "your mine" Had the |
hen in this case been of ordinary breed, instead
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