|Case Name:||Herbert Richard Farrington vs D. Munisami & Ors|
|DATE WHEN DECIDED||08.04.1949|
|COURT||IN THE HIGH COURT OF MADRAS|
|RULES/ACTS/STATUTES/CASES REFERRED:||Pouting v. NoakesDedne v. ClaytonJordin v. CrumpTownsend v. Wathen|
According to the verdict of the Subordinate Judge of Ootacamund, the third defendant established a hedge around his field and, despite this protection, pigs were entering the field and causing harm to the potato crop. To safeguard his crop from pigs, the third defendant set an array of traps around the perimeter of his field and cut open the hedge near the traps, presumably so that pigs who came there with the intention of stepping into the field would enter through these gaps rather than elsewhere, where they would be more likely to fall into the traps. The plaintiff was a neighbour who kept a cow. There is no proof that the defendants were aware of the plaintiff’s cow’s existence. The plaintiff would have been expected to be aware of the hedge’s inadequacies, yet the learned Subordinate Judge made no definitive decision on that point. The plaintiff’s cow was discovered to have walked through a gap in the hedges dividing the plaintiff’s compound from the defendant’s land, fallen into a trap near the gap, and been killed one morning. Plaintiff then filed this lawsuit, which was later dismissed.
The question is whether the defendants owed any duty to the trespassing animals.
While acknowledging the general principle that the owner of land has the right to protect his land and crops growing on it from trespassers, the learned advocate for the petitioner contends that this particular instance falls into the category of cases where the defendant laid a trap, which he was not permitted to do under the law. He cites Townsend v. Wathen, a case where an owner of the land, in order to rid himself of dogs and other vermin, built a number of traps in his grounds and enticed those traps with fish and highly flavourful meat, resulting in dogs passing along the highway being drawn into the land and thus trapped and killed. The person who owned one such dog sued the defendant, and it was determined that the defendant was liable because there was no difference that could be drawn between forcibly taking a dog into the field and killing it and luring it into the trap with some luring bait, into which the dog would be drawn by following its natural instincts. Mr. O. T. G. Nambiar contends that the issue under discussion is comparable in essence to Townsend v. Wathen, and that because the hedge was defendant 3’s, which he was under no obligation to create, his liability was no larger than if they had erected no hedge at all. However, it appears to me that a difference may be made, because, in this situation, the animal in question, the cow could only enter through a certain opening in the hedge, and if he did, he was almost certain to tumble into the trap. The fundamental difference between this case and Townsend v. Wathen is that in that case, defendant 3’s intention was to attract dogs into his grounds with the intent to kill them; but here, there is no reason to believe that defendant even knew” of the existence of the cow, let alone lured, or intended to lure, the plaintiff’s cow–or even pigs–into the trap. The most that can be stated is that he should have realized if he hadn’t paused and looked about it, that if pigs could get through the hedge and fall into the trap, cows and other animals could as well. According to the cases cited before me, the only exceptions to the general rule that a person has no duty to a trespasser are (1) that he is prohibited from doing something dangerous to a trespasser if he knows or has reason to believe that the trespasser is already on, or maybe on, his property, and (2) that he cannot do anything to lure on to his land and kill animals who would keep outside his property. It might be in a cow’s nature to move around in search of grass, and in doing so, he may well stroll through the breach in the hedge; yet, his ability to do so does not seem to imply that defendant coaxed the animal into his field. It is accepted that if a person negligently left the gate of his estate open and a cow came through and caused damage, the owner of the cow would be liable; however, the judge did not believe that the proprietor of the property would be liable in damages to the owner of the trespassing animal for injury to the animal in such a case. In the context argued by both halves, agreeing with the lower Court the High Court rejected this petition
Self-defence, also known as a non-consensual advantage, is a viable defence against trespasses over the person if it constitutes the use of “reasonable force that they genuinely and rationally believe is necessary to protect themselves, someone else, or property.” According to the decision in Cockroft v Smith, the force employed must be reasonable to the threat. Trespass to chattels is defined as a deliberate interference with the control of personal property immediate causing injury. While the tort was initially intended to be a remedy for the asportation of personal property, it has since expanded to include any interference with another person’s personal property. Trespass to chattels has been legislated in some countries, such as the United Kingdom, to explicitly specify the scope of the remedy. However, in most countries, trespassing to chattel remains a purely common law remedy, the scope of which varies by jurisdiction. Absence of consent. The property interference must be non-consensual. A claim does not exist if the purchaser agrees contractually to certain access by the seller when purchasing the property. “Any use exceeding the consent” granted by the contract gives rise to a cause of action Actual injury. Interference with property must cause actual injury. The real harm limit varies by jurisdiction. In California, for example, an electronic communication may be considered a trespass if it interferes with the operation of computer hardware, but the plaintiff must demonstrate that the interference induced actual hardware damage or hindered functioning intentionally. The intervention must be deliberate. Trespass to chattels primarily pertains to tangible property and permits owners to seek redress when a third party interrupts or intermeddles with the owner’s ownership of his personal property. In the correct circumstances, “interference” can be as minimal as “touching” or “moving” things rather than “taking” or “destroying” them. The defendant in Kirk v Gregory transported valuables from one location to another, where it was taken. The executor of the deceased owner successfully sued her for trespass to chattel. Furthermore, even where property interests are prohibited by law, personal property, as conventionally defined, includes living objects. Animals are so personal property, but organs are not. Trespassing on land is defined as “wrongful intrusion with one’s possessory rights in property.” It is not essential to prove that harm was caused in order to make a claim; rather, it is actionable per se. While the majority of land trespasses are deliberate, British courts have decided that liability exists for trespass committed negligently. Similarly, some US courts will only hold inadvertent intrusions liable if they occur under conditions indicating recklessness or entail a very dangerous conduct. There are exceptions for unintentionally entering land adjacent to a road (such as in a car accident), as in River Wear Commissioners v Adamson.
In this instance where the plaintiff’s horse in Ponting v. Noakes put its head across the fence dividing its master’s land from the defendant’s and ate the foliage of a yew tree growing on the other side of the hedge, causing the horse to die. It was claimed that the yew tree was a nuisance and that the defendants were therefore liable to the plaintiff for damages. It was determined that there was no annoyance and that the defendants had no need to safeguard animals that might trespass on their property, despite the fact that the yew tree was within proximity of animals on the other side of the hedge. Deane v. Clayton is a landmark case in which the defendant attempted to safeguard hares on his property by implanting spikes at the bases of trees bordering his neighbour’s land. The plaintiff was shooting on the neighbour’s fields with his dog, and the dog, in chase of a hare, jumped the boundary into the neighbour’s holdings and was killed by one of the spikes. In that instance, the learned Judges were divided, with two holding that the plaintiff was liable for damages and the other two holding the opposite. We are unaware of what happened in that case; however, an almost identical case came before the Courts in Jordian v. Crump, where the learned Judges followed the reasoning of Gibbs C. J. in Deans v. Clayton, who was in favour of passing judgment against the plaintiff, and the held that the defendant had a right to protect himself and his land against trespassing animals, even though he knew that his neighbour’s dogs would be killed as a result. This decision was upheld and followed in Ponting v. Noakes.
This article has been written by S Abhipsha Dash, first year learner at Symbiosis Law School as an intern under Legal Vidhiya