Spray v. Ammerman

Citations

• 66 Ill. 309

Syllabus

<p>1. Animals—right to remove cattle trespassing. Where cattle are trespassing upon the premises of a party, he, and also the members of his family, have the undoubted right to use all reasonable means and sufficient force to remove them, and there is nothing illegal in driving such cattle from the premises with dogs, if no unnecessary injury is done to the stock.</p> <p>2. When the plaintiff and defendant occupied adjoining premises, and the cattle of the latter were in the habit of escaping through an insufficient division fence into the premises of the plaintiff, the defect in such fence being attributable to the defendant, and the plaintiff’s daughter chased them back with the plaintiff’s dog, and shortly afterwards the defendant came and shot the dog on plaintiff’s premises: Held, that the defendant had no right to kill the dog, unless he was a nuisance in the neighborhood, but if injury ensued beyond what was necessary to drive the cattle back upon his own premises he had his action therefor.</p> <p>3. Does—right to hill. ■ If the owner of cattle, without fault on his part, is unable to protect them, when they are not trespassing upon the land of the plaintiff, from serious injury from the dog of the latter, then it seems he would have the right to kill such dog, to protect his stock.</p> <p>4. Same—evidence of vicious propensity. The fact that a dog had chased defendant’s cattle from the plaintiff’s land back to the defendant’s premises where they had escaped through an insufficient division fence, only when directed so to do by the plaintiff, or members of his family, or even his disposition to keep trespassing stock from his master’s premises, does not prove a vicious propensity in him.</p> <p>5. Same—instruction. In a suit to recover damages for the killing of a dog, the killing was sought to be justified as necessary to protect the defendant’s cattle from serious injury. The evidence did not show that the dog ever bit or worried the defendant’s stock, but