Millen v. Harvey , 1 N.C. 13 ( 1793 )

Crew, C. J.

The justification here is good. He might chase the sheep that were on his ground. 4 Rep. Tyrringham's case, and if the dog pursues the sheep on their owner’s land, contra voluntatem of the other, it is no trespass. 38 E. 3. 10 b. I. S. found a pheasant on his ground, and let a falcon fly at him, and the hawk took the pheasant on the land of I. D. who brought trespass for the entry of I. S. held that it lies. The same in 6. E. 4. 7. One cuts trees on his own, land, they fall on his neighbour’s, he goes there and takes them, trespass lies, otherwise if their had been blown down by the wind. But this case differs from those.

Doderidge, J.

Clearly: Trespass does not lie here, in as much as the rule is, that in all trespasses there ought to be a voluntary act, and also a damage, otherwise trespass does not lie. And in 22 E. 4. 8. If cattle graze the grass. The same if one drives sheep in the highway, and they escape on your land, against the will of the driver, trespass does not lie, because it was contra voluntatem, 12 H. 8. I may drive cattle out of my own land, but no one else can.

Jones, J.

It is a good justification.

And judgment was entered accordingly.

*He said perhaps it will make a difference when the driver drives the cattle in the land of the owner, or in that of stranger, Also there is a difference when a man chases cattle out of his own land himself, or causes them to be chased by his dog, or whether he chases them out of his ground in a common, or in the highway. Quære of these. postea, p. 119. Poph. 161. Bendl. 171. Jones 131. 2 Cr. 568.