—
Animals.
378
Sect. 2. fencing or otherwise to protect it (p). Where, therefore, an ox was Trespass by being driven through the street of a town and went into a shop An imal s, through an open door without any negligence on the part of the drover, and did damage before it could jbe driven out, the owner was
not liable
(q).
Sub-Sect.
No
3.
— Wild Animals.
823. No action for the trespass of animals fevce naturce on the land of another will lie for the owner has only a qualified property in them while they are alive, and they go with and belong to the soil as soon as they have crossed from the land of one man to that of another they belong to the latter, or, more strictly, he has the right to kill them and reduce them into possession {r). An owner of land, therefore, is not liable for the damage done by rabbits or other wild animals that come from his land (for his neighbour may kill them as soon as they come on his land (s) ) unless he brings on to his land a greater quantity of game or wild animals than can reasonably and properly be kept on it in which case he
trespass
by wild
animals.
is liable for
damage done by them on
alienum non laedas
the principle Sic utere tuo ut
(t).
apprehended that an action will not lie unless the defendant has actually brought the animals on to the land a mere failure to keep the existing stock within reasonable limits would not, apart from express agreement to do so, be sufficient and the fact that rabbits have become a nuisance owing to their numbers does not justify entering upon the land of another and digging up the burrows to abate the nuisance (x).
Nuisance.
It is
Sect.
S.— Distress Damage Feasant, Sub -Sect.
1.
The Seizure.
824. By an old common law remedy similar
Nature of remedy.
to distress for rent,
damage feasant, trespassing animals may be seized and impounded to secure compensation for the damage done by called distress
them.
825. Any landowner or person having possession of land or a maintain an action of trespass may
Who may distrain.
sufficient interest in land to (p)
N. 681
Per Pollock, C.B., and Martin, B., in Goodiuyn v. Cheveley (1859), 4 H. & and compare Blackbukn", J., in Fletcher v. By lands (1866), L. R. 1 Exch.
265, at p. 286. (q)
Tillett v.
Ward
(1882), 10 Q. B. D. 17.
It
is
hardly necessary to support
by reference to this exception for there is no liability for an involuntary trespass, which seems a much shorter ground for the decision. this decision
it is the precise case mentioned in Millen v. Faiudry (1625), Poph. 161 (see note [t), p. 395, post), of a man driving " goods " through a town, one of which goes into another man's house, as an instance of an involuntary trespass. {r) See p. 367, ante. [s) Compare Boulston's Case (1597), 5 Co. Rep. 104 b. {t) Farrer y. Nelson (1885), 15 Q. B. D. 258, per Pollock, B., at p. 260, where a shooting tenant brought on to the land in coops four hundred and fifty pheasants which had been reared elsewhere and was held liable for damage. Compare Boidston's Case {supra), where the making of the coney burrows was an active interference with the existing state of things on the land. See, further,
Indeed
.
title (x)
Game and
Sport.
Cooper v. Marshall (1757),
1
Burr. 259.
