Supreme Judicial Court of Maine
CHAPMAN v. DECROW
93 Me. 378, 45 A. 295 (1899)
In this Maine case, the defendant was found liable for trespass after he killed the plaintiff's dog. Defendant asserted that the dog was trespassing on his premises, and was “then, or had been immediately before the shooting, engaged, with two other dogs, in chasing and worrying his domesticated animals, to wit, tame rabbits." As a result, he claimed that the killing was justified. This court first disagreed with defendant's claim that an unlicensed dog is not property because it constitutes a nuisance. This court found that, by the common law, a dog is property, for an injury to which an action will lie. Moreover, the statute to which defendant claims authority to kill an unlicensed dog only allows a constable to do so after a proscribed lapse. Finally, the court overruled defendant's exception with the refusal of his jury instruction related to the justification for killing the dog because it was worrying his rabbits. The court found defendant's proposed instruction too broad because the justified killing of a dog occurs only when the dog is engaged "in the act of" worrying livestock.
delivered the opinion of the court.
Opinion of the Court:
Trespass for killing plaintiff's dog. Defendant claimed that the dog was trespassing on his premises, and was “then, or had been immediately before the shooting, engaged, with two other dogs, in chasing and worrying his domesticated animals, to wit, tame rabbits,” and that the killing was therefore justified.
The dog had not been licensed for that year as provided by chapter 287 of the Laws of 1893, though it had been the previous year. The defendant claimed that, because he was not licensed, there was no property in him, and that anybody had the right to kill him, and therefore the owner had no redress.
The first exception is to the ruling of the presiding justice “that a dog is property,” and to the instruction, “The defense takes the position that in this case there was no property in this dog to his owner; that he was a nuisance; that any person could kill and slay him, because he was not licensed and registered according to the statute of this state. I rule against that proposition.”
By the common law, a dog is property, for an injury to which an action will lie. Wright v. Ramscot, 1 Saund. 84; Athill v. Corbet, Cro. Jac. 463. But larceny could not be committed of a dog. But by St. 7 & 8 Geo. IV. it is made a misdemeanor to steal one.
In State v. McDuffie, 34 N. H. 526, it is said: “Dogs are domesticated or tame animals, and as much the subject of property or ownership as horses, cattle, or sheep. Trespass or trover will lie for them.” In State v. Harriman, 75 Me. 562, where it was held by a divided court that a dog was not a domestic animal, within the statute making it a criminal offense to kill or wound a domestic animal, it was said, “The dog is recognized as property so far as to afford a civil remedy for an injury, but seldom, if ever, any other.”
If, as claimed by defendant, the fact that this dog was not licensed for that year rendered him a nuisance, which is not admitted, he would be a public nuisance; and no individual was authorized to abate it unless he was suffering damages therefrom peculiar to himself, and distinct from the injury to the public. Corthell v. Holmes, 87 Me. 27, 32 Atl. 715.
But the defendant claims that the statute of 1893 has by implication outlawed all dogs not registered as therein provided. That act provides for an annual registration of dogs before the 1st day of April, and imposes a penalty upon the owner if he fails to so register. Section 10 requires the selectmen “within ten days from the first day of May to issue a warrant” for killing unlicensed and uncollared dogs.
No authority to kill them is given under this statute, except to a constable acting under such warrant, which cannot issue before the 1st day of May, nor after the lapse of 10 days thereafter. The legislature evidently contemplated, notwithstanding the requirement for registration before April 1st, that dogs might be registered and licensed at a later date; for in the same section which requires registration before April 1st it is provided that “a person becoming the owner or keeper of a dog after the first day of April, not duly licensed, shall cause it to be registered,” etc., “as provided above.”
It may be that the owner who fails to register his dog before April 1st may be liable to the penalty prescribed, but, if he sells the dog at any time after that date, the then owner may register him and protect him against the warrant in the constable's hand; and, as revenue appears to be one object of the act, it would seem that the owner who neglected to register on April 1st might do so later. This dog was shot April 24th, before the municipal officers were authorized to issue a warrant.
It will be noticed that this act provides only for killing unlicensed dogs by a constable under a warrant, and impliedly forbids killing by any other person.
The postponement to May 1st of the authority to the municipal officers to issue a warrant indicates an intention to allow the negligent owner opportunity to repair his forgetfulness.
But it is said that section 11, which provides a civil liability for stealing or killing a registered dog, by implication outlaws all that are not registered, and authorizes anybody to steal or kill them. If this provision adds any remedy not known to the common law, it certainly*299 does not take away rights previously existing by it.
The defendant justified the killing upon the ground that the dog was worrying his rabbits. He asked the court to instruct the jury “that if the jury find that, at the time of the shooting of the dog, he had killed or wounded the defendant's domesticated animals on the defendant's premises, and was again there apparently for the purpose of destroying others, the defendant would not be liable for killing the dog, but would be justified in so doing, even though the dog was not at the time in the act of destroying or worrying the animals.
This instruction was refused, and rightly so. It was too broad. Rev. St. c. 30, § 2, provides that “any person may lawfully kill a dog that suddenly assaults him or another person, when peaceably walking or riding, or is found worrying, wounding or killing any domestic animal, outside of the inclosure or immediate care of his owner.” Under this statute it is not enough that the dog may have worried or killed a domestic animal before, nor that there is a belief or apprehension that he intends to do so, to justify the killing; but he must be in the act, or, in the language of the charge in this case, “the worrying and the shooting must be substantially at the same time.” “If he had been worrying the defendant's rabbits, and had been merely momentarily checked or held at bay by the girls at the door, or the hired man, or anybody else, and the dog had not quit the chase, but was still intent at a little distance from out his tracks where he had previously begun to worry the animals, and he was still intent upon the act of worrying,-either returning, or ready to return as soon as the obstructions for getting at the rabbits were removed from him,-I think you would be authorized, if you see fit, to say that his worrying and killing were co-existent acts, concurrent acts, done at the same time; that they were one transaction.”
The defendant has no reason to complain of this instruction. In Morris v. Nugent, 7 Car. & P. 572, it was held that, to justify shooting a dog, he must be actually attacking the party at the time. In that case the dog ran out and bit the defendant's garter, and the defendant turned round and raised his gun, and the dog ran away, and he shot the dog as he was running away; and it was held he was not justified. So, to justify shooting a dog because he was worrying fowl, and could not otherwise be prevented, the party must show that the dog was in the act of worrying at the time. Janson v. Brown, 1 Camp. 41. See, also, Wells v. Head, 4 Car. & P. 568. It is not sufficient that the party had reasonable cause to believe that the dog was proceeding to worry the animals, but he should also have reasonable cause to believe that it was necessary to kill the dog to prevent him from killing the animals. So held in Livermore v. Batchelder, 141 Mass. 179, 5 N. E. 275.
The refusal to instruct, and the instructions given, were in accordance with law, and fully protected defendant's rights.