Arlowski v. Foglio

Under the facts found there can be no question as to the correctness of the judgment, unless the court erred as to certain conclusions drawn therefrom as specified in the plaintiff's reasons of appeal.

The plaintiff made a request for a finding, filed a draft-finding, and sought by motion to have the court correct its finding by substituting certain paragraphs in her draft-finding for certain paragraphs of the court's finding. This motion was not accompanied by a transcript of any evidence, nor by any written exceptions; consequently it does not lay a foundation for any proceeding in this court to correct the finding. Practice Book, pp. 308, 309; DeFeo v. Hindinger, 98 Conn. 578,120 A. 314.

The plaintiff's fifth reason of appeal predicates error upon the claim that the plaintiff did not make the first claim of law as set forth in the finding, but made a claim of law as set forth as her first claim in her request for a finding, and she requests this court to correct the finding accordingly; and further, in her sixth reason of appeal, seeks in effect to have other claims of law, alleged to have been made by the plaintiff, incorporated in the finding.

Such an attempt to have claims of law alleged to have been made, incorporated in a finding, which is not presented upon exceptions taken under the provisions of General Statutes, § 5830, constitutes an attempt to rectify an appeal, and must be made under General Statutes, § 5836. The procedure followed by the plaintiff discloses that the requisite steps to secure such rectification have not been complied with. Marks v.Dorkin, 104 Conn. 660, 133 A. 915. The finding as made by the trial court and corrected by it must therefore stand.

The appeal presents questions as to the correctness of certain conclusions necessarily made by the trial court in overruling the plaintiff's claims of law as set forth above. The facts found and the holdings thereon present questions as to the legal significance of the conduct of the parties, in relation to a claimed trespass on land, and the detention of personal property of another.

Our statutes as to impounding do not authorize a landowner to detain cattle upon his own land which entered his land through an insufficient fence which it was his duty to maintain. General Statutes, § 364. Under the facts found the plaintiff and her husband were in possession of cows of the defendant upon their land, and refused to deliver them to him upon his demand. The cattle were not lawfully detained by them, since their presence on their land was caused by their defective division fence.

Bigelow on Torts (8th Ed.) p. 382, states the law as follows: "The sixth case is where a man's goods, without his act, have got upon the land of another. In such a case the owner of the goods may enter and take them. . . . The defendant enters upon the plaintiff's land to get his own goods which the plaintiff has wrongfully taken and put there. This is lawful; though it would have been otherwise had the plaintiff come properly into possession of the goods."

An entry by the defendant merely for the purpose of asking for the cattle was therefore lawful. A person desiring to enter the land of another to demand his own goods unlawfully detained there, may obviously take such precautions as to known dangers involved in such entry as a reasonable man would deem proper.

In the instant case, the defendant made a demand for his cattle early on the day in question; his demand was refused, the plaintiff and her husband used vile and abusive language to him, and then ordered him to leave the premises and threatened to kill him; the defendant also knew that they kept a vicious dog on the premises. Under such circumstances, we cannot say as a matter of law that the defendant took an unreasonable precaution on his visit to the premises in the evening to demand the cattle, when he carried the shotgun. After he was attacked by the dog and the Arlowskis, we cannot say that such steps as he took to protect himself were not reasonably justified by the nature of the attack made upon him. Such attack upon him was the cause of all the consequences of his defensive acts.

It is apparent that the plaintiff and her husband, as landowners upon their own land, were at the time of the assault influenced by an exaggerated conception of their rights in such relation; this conception is well described by Bohlen in his "Studies in the Law of Torts," p. 162 et seq., where he says: "The decisions as to a landowner's liability to persons injured on his property group themselves into two classes: those in which the injuries are caused by the owner's acts and those caused by the condition of his premises. In both there is a gradual but persistent weakening of the original concept that the owner was sovereign within his own boundaries and as such might do what he pleased on or with his own domain. . . . When the comparatively modern law of negligence reached the relations of landowners to persons entering their property, it found the field occupied by the concept of the owner's right as sovereign to do what he pleased on or with his own property. The history of this subject is one of conflict between the general principles of the law of negligence and the traditional immunity of landowners." See also, Idem, p. 164 et seq., as to the duty owed to a trespasser by a landowner. See also Bigelow on Torts (8th Ed.) Chapter 12, on Trespasses upon Property.

In the instant case, the defendant was not a trespasser at the time of the battery upon him, since he was then exercising a right to seek his own cattle when unlawfully detained on the land of another. Furthermore, the plaintiff and her husband made a wanton and reckless attack upon the defendant, which caused him serious harm, and his conduct was such as he was required to take in his own reasonable defense. Bigelow on Torts (8th Ed.) p. 382 et seq.

The conclusions from the facts found, made by the trial court, were legally and logically drawn from the subordinate facts, and hence were not erroneous.

There is no error.

In this opinion the other judges concurred.