The Baltimore County union. [volume] (Towsontown, Md.) 1865-1909, 1903-11-28
Correspondence Baltimore County Union.
TRESPASS BY DOMESTIC ANIMALS.
Dogs Trespassing Lead to Expensive Law
Suits-The Degree of Force Necessa-
~ to Defend Ones Property-The
Use of Poison to Kill, etc., etc.
CONCLUDED from last aceek.l

Wv lNdS MILLS. DALTO. OOUN1 4oVos
The controversy has invariably arisen over the
necessity or not of the acts of defence used.
Mr.. Dunning was awakened one night by the
noise of Mr. Birds dog coming out of his smoke
house. He shot the dog, and was held justified,
as it would have been most unreasonable to ex-
pect of him that he should have used only such
force as was necessary to drive the dog away,
and take chances on his immediate return when
he had retired. When he found the dog coming
out of the building where he had his property
which he knew the dog would by instinct de-
stroy, it being at very late hour of the nighthe
had right to shoot him in the reasonable de-
fence of his property, the act of defence thus
being within reason. Mr.. Bird argued that it
was the duty of Mr.. Dunning to SO construct
his building that the dog could not get in it, but
as the dog was trespasser, it did not lie in the
mouth of its owner to say that the building was
insecure. However much pleasure even
profit there may be in the ownership of dogs,no
one has the right to enjoy that pleasure or profit
and SO far disregard the rights of others as to
permit them to go unrestrained and unattended
at all hours of the night. preying upon the prop
erty of others. If Mr.. Birds dog had entered
the smokehouse in the daytime, would Mr.. Dun
ming still have had the right to shoot him This
has been answered both ways, and the fact that
Judges do not always agree is illustrated by the
case of Livermore against Batchelder, in Massa-
chusetts and the case of Marshall against Black
shire, in Iowa. Mr.. Livermore owned dog,
which with another dog came upon Mr.. Batch
elders premises and there killed and MANNED
his hens in the henhouse. The dogs were driven
away, hut returned about fifteen minutes after
wards and were running toward the henhouse
when Mr.. Batchelder shot Mr.. Lvermore's dog
and killed it. He defended his action on the
ground that he presumed the dogs were going
to the henhouse to kill other hens, but by some
peculiar method of reasoning distinctly his own
such inference, yet he did not believe that Mr..
Batchelder had reasonable cause to believe that
tect his hens, and that therefore the shoot
ting was unwarranted and he was liable
to Mr.. Livermore for the value of the
dog. Apparently If he had waited until the dog
had killed several more of his hens, the judge
might then have justified him in shooting Evil
MARSHALL against Biacksbire however. a common
sense rule was laid down under circumstances
exactly similar to those in the case of Mr.. Batch
elder, Mr.. Backshire having driven the dog
away once from his chickens, and upon his re-
turn shot him. He was justified in the shooting
on the ground that if the dog was worrying the
chickens he incurred the penalty of being shot,
and that to worry meant Ito run after, to chase,
to bark att That it was not necessary that the
dog should have been, at the very instant of the
shooting, in the act of worrying or killing the
chickens, in order to Justify the shooting of it,
but that if the. dog had been worrying the
chickens upon Mr.. Blackshire's premises and at
the time he was killed his conduct was such as
to create in the mind of Mr.. Blackshre reason
able apprehension of continued worrying of the
Mr.. Marshall could not recover for the loss of
his dog.
to destroy all dogs found on his grounds and his
servant accordingly killed two dogs that were
trespassing in his masters field, near valuable
field of sheep. 1t was held that the shooting
was not justihable, because if dog is known
to be sheep-killer and is found on the property
OF ne % R WATT n If % a so near or
his prey, worrying it, before he is killed. yet the
case is very different when this is not the char
acter of the dog. 1t is always question of de-
gree that entities person to prevent an appre-
Therefore, by the settled principles of the
En- Itch To- % rUn1 od nyUn ha ~
force which may be employed in defending ones
property or person is well defined, and admits
of no controversy. 1t is entirely and exclusive
ly defensiCe. If man makes an assault on the
person of another or enters his house, or re-
fuses to go out when ordered, or enters on his
land, or in any way attempts trespass on his
property, of any description, by force, then so
much force as is necessary to repel or prevent
injury, or remove the trespasser, and no more,
land of B, then, after notice to A to depart b
may use such reasonable force as is necessary
pei another's beast from his field, or he may
seize and impound it. But he has no right by
stroy life or infiict permanent injury, or use
greater force than is necessary for removal or
prevention. The right to kill a bull or other
furious beast from which ones person is in
present danger, or dog chasing sheep or other
animals of property,i lis an exception to this rule.
And so with regard to driving away trespassing
animals, no more force than is necessary must
be used in turning the beast out. In the case
first cited of Mr.. Digges, he had perfect right
a reasonable manner, and there was rule of
law that made it his duty to turn her out in a
direction toward Mr.. Knott. Had he returned
her to her masters field there was every proba-
biity of her returning. and it was therefore his
privilege to turn her out at whatever portion of
his field he chose, whether into the woods or on
public road. He made the mistake of simply
OVERRIDING it. And for these reasons the pur-
or p is srspassng and viii
subject the offender to the payment of damages
for injuries resulting to the animals from the
beating.
But it may be well to remember that in all
the cases which justify extreme acts of defence,
such as the killing of Mr.. Anderson's valuable
dogs by Mr.. Smith, the attacking dog or other
trespassng animal was killed while in hot pur-
suit of its prey. and where the aggressive ami
NAL was killed after the attack, the killing was
not justifiable. for there the peril has ceased and
the property sought to be defended is no longer
in danger. 1t was this, proposition that the
learned judge had in mind in the above case of
Livermore against Batchelder; he presumed
that the hens were not in danger, although the
Livermore Thought that his hens were in danger.
and there the difference lies. An old English
case has as well put it, that IF dog chase comics
In warren, or game in preserve, or deer in a
park, or sheep in fold, he may be killed by the
owner of the animals to prevent their destruc-
ton, but not after the chasing is discontinued
runs upon the land of another while chasing a
rabbit or other wild animal, the killing of the
dog is not juStifiable, unless necessity to pre-
serve domestic animals is made out.
For the same reason all the authorities dis
countenance the placing of poison, traps or
other devices to prevent trespassing animals.
Mr.. Patterson owned some chickens, which Mr..
johnson said for long time had been coming
on his field, destroying his garden seed and the
that patience which is a virtue and is long suf-
fering, but eventually it gave out, and so one
either conine his fowls or in some other way
prevent them from trespassing upon his land,
otherwise they certainly would be poisoned. To
all of which Mr.. Patterson paid little heed, with
the consequence that his chickens ate too
heartily of Indian meal mixed with arsenic,
scattered upon Mr. Johnson's land, and many of
them died. The sole question here was, was Mr..
Johnson, after having notified Mr.. Patterson of
the placing of the poison, justified? In other
chickens with a stick, as in the case of Mr..
Keliher, had he the right to accomplish the
same result indirectly by poison.
1t was decided that he had not, the court hold
ing that If he could place poison for chickens,
then equally as well could he place poison for
cattle or other valuable animals. And vet. it is
very probable that the loss to Mr.. johnson by
reason of the destruction of his seed and vege-
tables was considerable perhaps more than the
value to Mr.. Patterson of the chickens. The
real reason may be that where the losses to the
injured owner of the land are occasioned by a
series of trespasses, covering period of days,
the damage done by each days trespass being
in itself small, but large in the aggregate then,
if the owner be known, killing of the trespass-
ing animals is not encouraged. but the damaged
owner of the land is compelled to resort to a
suit at law against the owner of the offending
animals, expensive to him though it may be.
NAL is unknown and the depredatiOns are COM
mitted secretly. as in the night time, the courts
of some states warrant the placing of traps, and
leave the owner of the animal to bear his loss in
the event of its being caught. Thus, Mr.. Hodge,
of Tennessee had for long time been missing
chickens and eggs from his hen house. His
neighbors likewise had lost fowls, but as his
place adjoined his fathers, Mr.. Hodge pre-
sumed that his fathers dog was the culprit
in the matter. He therefore placed asteel trap,
concealed in bucket of milk slop, near the
hen house one night. Mr.. Garner lived quar-
ter of a mile away, and Mr.. Hodge was very
much surprised the next morning to find that
Mr.: Gamers dog had been caught in the trap
and his tongue torn out. 1t was decided that as
the slop used by Mr.. Hodge was not intended to
lure dogs away from the premises where they
properly belonged on to his premises, and as
this must have been the dog that had been MAX
ing the nightly depredations he had the right
to protect his place against such inyasions, and
to adopt such means as were necessary for that
purpose. The distinction here made may be
better understood when consider that in
England, whose laws were our own up to the
Revolution, it has long been usual for the pro-
prietor of land to place spring guns and other
deadly engines upon his enclosures, so concealed
as not to be seen. and if proper notice be given
of the presence of the spring guns, he is justi-
fed in intlicting any injury on men or animals |