Goodsell v. Dunning

This is an action of trespass for taking the plaintiff’s horse. It was found in the highway in front of the defendant’s laud, and was taken up by him under the act of 1863, (Gen. Statutes, p. 130, secs. 193, 194, 195,) and the question in the case is, whether the defendant proceeded legally after having first taken the animal into his custody. The 194th section of the statute, provides that when an animal is taken up under this act the person so taking it up shall give immediate notice to the owner, if known, and then provides that the owner shall be entitled to it, if applied for within twenty-four hours after such notice shall have been given, on paying a certain fee and just damages for injuries sustained. In this case the owner was known, and it is claimed that the notice which the statute requires was not given.The finding, however, as we think, shows that proper notice was given, or, at least, that the plaintiff had notice. It is true notice is not expressly found, but facts are found from which the inference is irresistible that the plaintiff had notice. The parties were neighbors, residing within forty rods of each other, and the plaintiff in fact saw the defendant take the horse into his custody. As it was taken up from the highway opposite the defendant’s land, where, under this statute, the defendant had a right tó take it, the plaintiff may well be presumed to have known that the horse was taken up because it was trespassing there, and when, in connection with this, it appears that the defendant went with a written notice to the plaintiff’s house, and the door was closed upon liinq and he could not gain admittance in order to deliver it, justice requires that the plaintiff should be held to have received notice of all which the writing contained. But the written iiotice was placed in the handle of the door, and it appears that the plaintiff got it in the forenoon of that day. We think this was notice enough to have justified any court in finding it *257directly, and it would have been error if it had been found there was no notice.

It is said however that the writing was not a sufficient notice in point of form, because it does not state that the defendant had taken the horse under the 193d section of this act. The plaintiff must be presumed to have known the law in regard to taking up animals in the highway against another’s land, and with this knowledge he is informed that his horse has been taken and impounded in the defendant’s yard according to the laws of the state; But this could be lawfully done only by virtue of this section of the act. We think, therefore, that this was in substance informing him that the animal had been taken up under this section.

It is said again that the word “impounded” used in the notice has a technical meaning which excludes the idea that the horse was taken under the act of 1863, and implies rather that it was taken under the old statute in relation to pounds. Perhaps this might be so if the words “in my yard” had not been used in connection with the word “impounded,” showing that it was a different impounding from that intended by the old statute; and there is no other lawful mode of impounding except under the provisions of this statute of 1863.

The statute requires the giving of immediate notice. This means, of course, reasonable notice. No particular form of notice is required, and it need not be in writing. The cases cited, therefore, which arose under statutes different from this, where notice in writing, and the particulars of the notice, are prescribed, have no application here.

It is claimed, in the next place, that the defendant’s treatment of the horse while in his custody and possession was such as to render him a trespasser ab initio, notwithstanding the first taking might have been lawful.

The horse was taken up, as we have seen, under the statute of 1863, and it is claimed that after it had been kept in the defendant’s yard for a day or more, he changed his mind in respect to the law under which he would act, and attempted to turn the transaction into an ordinary impounding under *258the former statute, and for that purpose placed the horse in the town pound. It is not claimed by the defendant that this could legally be- done, and it is very clear that it could not. He did however put the horse in the town pound, and the questions arise, first, whether by this act he abandoned the ground upon which he first took up the horse, and, second, whether this act was such an abuse of his authority as renders him a trespasser ab initio. The horse was taken up on the 20th of May, and after the twenty-four hours within which the plaintiff could have regained possession of it had elapsed, the defendant gave the requisite notice to the town clerk, who took the proper steps to dispose of the animal according to the law, and he accordingly advertised a sale of it on the 4th of June then next. In the meantime, as it was necessary that it should be properly kept and cared for, and as he had not himself conveniences for so keeping it, he, with the advice of the town clerk, put it in the town pound for safe keeping. Now there can be no doubt but that this putting of the horse in the pound is strong evidence, that he then intended to impound it in the ordinary way, under the old statute, and not under the statute of 1863, and so is, of course, evidence of a change of the ground upon which he first took it. He could not lawfully do this, and if this circumstance had not been explained, and the inference repelled by the express finding to the contrary, we might subject the defendant on this ground. But, as we have said, the finding is directly to the contrary, and it is moreover found that ordinary care and prudence were exercised by the defendant in the seizure, custody and general treatment of the horse. There is therefore no ground for any presumption of fact on the subject; and the only claim must be that the keeping of the horse in the town pound was irregular in point of law after a seizure under the act of 1863. And although it is true that this is not the use for which .such pounds are built, if even it be assumed, as is claimed by the plaintiff, that such use of them is illegal in the sense that it is unauthorized, still we do not see what right the plaintiff has to complain of it, so long as his horse was kept with ordinary care and prudence. We are of *259opinion therefore that there is nothing in this fact that will render the defendant liable.

That this pound to which the animal was taken was some four or five miles from the residence of the defendant, or that the road by which he took it there was a few rods longer than another road which he might have taken, are matters of no importance except as evidence tending to show that proper care was not taken of the animal; and this was a fact for the superior court to find, and the finding upon it being full to the effect that proper care was taken in the custody and general treatment of the animal, we do not see how it can be determined as matter of law that the authority which the statute gives was abused by the defendant.

We therefore advise the superior court to render judgment in favor of the defendant.

In this opinion the other judges concurred.