Brady v Warren

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: Queen's Bench Division (Ireland)

Brady

and

Warren (1).

Q. B. Div.

(1900. No. 969.)

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1900.

Trespass — Animals ferae naturae — Rabbits — Deer — Sic utere tuo ut alienum non laedas.

In the year 1898 W. came into possession of a demesne where there were rabbits and deer, which trespassed upon adjoining lands in the occupation of B., doing considerable damage to his crops. W.'s predecessor had, on two occasions, let loose foreign rabbits, with a view to the improvement of the breed, and W. had, since he entered into possession, trapped the rabbits for profit, and exported them to England, but had done nothing to improve them or increase their numbers. Rabbits bred in considerable numbers on B.'s lands as well. The deer, which at one time had been confined within a walled deer-park in the demesne, broke loose in the year 1893, through a temporary breach in the wall, and only portion were recaptured. The remainder had since been wandering about the demesne, breeding there, and trespassing continually on B.'s lands, but always returning to the demesne. W., with his friends, occasionally shot the deer for sport; and, in response to B.'s complaints, told him that he might shoot them; and, in fact, gave it out generally in the neighbourhood that he desired that anyone who could shoot them might do so. At the same time he kept a wood-ranger, whose duty it was to look after the deer, and his predecessor had occasionally fed the deer in winter time with hay, laurels, and oats:—

Held, that W. was not liable in respect of the damage done by trespass of the rabbits:—

Held (Boyd, J., diss.), that there was evidence to support the finding of the jury that the deer were W.'s deer, that they were tame and “kept” by W., and under his control; and that W. was liable upon that finding for any damage done by the deer to B.'s land and crops.

John Brady had two adjoining farms, one under Mr. St. Ledger of 80a. 3r. 30p., and another of 54a. under Augustus Riversdale John Blennerhasset Warren, the St. Ledger holding adjoining Warrenseourt demesne for three quarters of a mile. The other was separated from the demesne by three fields of the St. Ledger holding.

Mr. Warren, upon the occasion of his marriage in January, 1898, entered into possession of Warrenscourt, under an assignment from his father, Sir Augustus Riversdale Warren, Bart. Formerly the deer in the demesne were enclosed in a deer park, about 40 acres in extent. Portion of the wall of the deer park was blown down in the year 1893, and a number of the deer escaped into the demesne. The breach was repaired about six months afterwards, but numbers of the deer continued to roam through the demesne. It did not appear that any of those confined in the park had escaped since that time, but it was stated that there had been fresh breaches from time to time, and that some were of recent date. About eight years ago, they began to trespass on Brady's farm, doing much damage to his oats, corn, turnips, pasture, and meadowing. The trespass became very bad in the year 1898, the boundary fence of the demesne being insufficient to enclose them, and as many as from twenty to twenty-two appeared on Brady's farm at the one time. They passed backwards and forwards between the demesne and Brady's land, and were quite wild, and out of Mr. Warren's control. Mr. Warren frequently got up shooting parties amongst his friends, and shot the deer in the demesne. He told Brady two or three times that he might shoot the deer, and in fact gave it out generally in the neighbourhood that he wished everybody who could to shoot them. He kept a wood-ranger, whose duty it was to look after the deer. This man had seen deer wandering away from the demesne as far as the townland of Dooniskey, three miles off, but he could not say whether they returned. Sir Augustus Warren was accustomed to feed the deer in winter time with hay, laurels, and oats, but his successor did not feed them.

Rabbits had always bred in considerable numbers in the demesne, and trespassed upon Brady's lands; but Brady admitted that he did not mind the rabbits at all, if Mr. Warren kept the deer away. The rabbits bred on his own farm, as well as in Warrenscourt. About twelve years ago Sir Augustus Warren imported half a dozen Belgian rabbits, and about seven years ago brought some bucks from England with the object of improving the breed of the rabbits for sale. Mr. Warren employed three or four men in trapping the rabbits, and exported them under contracts to Manchester to the number of about 4000 in the year.

Brady complained to the agent of the estate, Mr. Carroll, who visited him in September, 1898, and said he would write to Sir Augustus Warren or his son about the matter. He offered Brady a half year's rent of the small holding—£8 15s.—as compensation for the damage done by the deer and rabbits, to which Brady replied that they would do that much damage in a single night. Brady withheld his rent of the small holding for two and a-half years to bring the question of compensation to a point He paid that rent in 1899, and upon the 18th January, 1900, instituted this action for damages.

The action was tried before Lord Justice Fitz Gibbon and a county common jury at the Cork Spring Assizes of 1900. A direction was asked for by defendant's counsel on the ground that there was no evidence that the defendant “kept” either the deer or rabbits. This was refused by the learned Lord Justice.

The following were the questions left to the jury, and their answers:—

1. Were any of the rabbits which went on the plaintiff's farm kept by the defendant?—Yes; they were.

2. Were any of those rabbits the rabbits of the defendant?—Yes.

3. If so, were such rabbits kept with reasonable care to prevent them from damaging plaintiff's farm?—No; they were not.

4. If not, what amount of pecuniary damage was done to the plaintiff by the defendant's want of reasonable care from the 6th January, 1898, to the 18th January, 1900?—£10.

5. Were any of the deer which went on the plaintiff's farm kept by the defendant?—Yes; they were.

6. Were any of those deer the deer of the defendant?—Yes.

7. If so, were such deer kept with reasonable care to prevent them from damaging the plaintiff's farms?—No; they were not.

8. If not, what amount of pecuniary damage was done to the plaintiff by the defendant's want of reasonable care from the 6th January, 1898, to the 18th January, 1900?—£102 8s.

Judgment was entered for the plaintiff, in all, for £112 8s., with costs.

The defendant moved to have this judgment set aside upon the ground that there was no evidence that the defendant kept or had any such property or control over the deer or rabbits as rendered him liable for any damage done by them to the plaintiff, or that the defendant was guilty of any negligence in or about the keep of the deer or rabbits, and that the Judge should have directed a verdict for the defendant; also upon the grounds that the Judge misdirected the jury by telling them that if the defendant used the deer or rabbits for the purpose of profit or support it would be such a keeping as would render the defendant liable in point of law for any damage done by them to the plaintiff; and also upon the grounds that the findings were against the weight of evidence, and that the damages were excessive.

Conner, Q.C. (with him Ronan, Q.C., and Cole Bowen), for the defendant:—

Since Boulston v. Hardy (1) it is settled that it is legal for a person to have rabbits on his land, and that he is not liable in trespass for the injury done by such rabbits to the land of his neighbours. The principle is subject only to this modification, that the land must not be so overstocked with rabbits or game as necessarily to cause injury to the neighbouring land. There is no evidence here that the defendant did anything whatever to artificially increase the rabbits. The entire evidence is that he killed as many as he could. As to the “turning down” of a few rabbits by the defendant's predecessor a number of years ago, if it be legal for a person to put any rabbits on his land, as to which there can be no question, there was nothing unreasonable in doing something that would only have the effect of improving the breed; but even if there were such unreasonableness it would not make the defendant liable, the rabbits being admittedly wild rabbits. [The following cases were also referred to upon this branch:—Sutton v. Moodey (2); Birkbeck v. Paget (3); Paget v. Birkbeck (4); Hilton v. Green (5); Farrer v. Nelson (6).]

Upon the second branch of the case, deer are feræ naturæ; and a man is only responsible for their acts when he keeps them under his control as tame deer. All the evidence is that these deer were wild in the highest degree. The fact that these deer or their ancestors had, at one time, been kept within a walled enclosure does not render them tame within the meaning of the authorities when they have for a number of years enjoyed their original freedom and bred in a wild condition. No acts of ownership by the defendant are shown save such as might be reasonably exercised by him in reference to animals admittedly wild, such as his preventing trespassers from coming on his land. The fact that the defendant's predecessor upon one occasion fed the deer does not affect the question at issue here, because the defendant merely took an assignment of the lands, and never exercised any rights of property over the deer which he found upon them.

[He referred to The Case ofSwans (1); Mallocke v. Easily (2); Hannam v. Mockett (3); Blades v. Higgs (4); Davies v. Powell (5)); Morgan v. Abergavenny (6); Ford v. Tynte (7); AnonymousCase (8).]

Redmond Barry, Q.C., and P. D. Fleming, for the plaintiff:—

Rabbits are naturally indigenous to the soil, but in this...