Herrin v. Sutherland

OPINION BY: CALLAWAY

It is … alleged that about the 18th of September, 1924, the defendant being engaged on a fishing and hunting expedition, rowed a boat down the channel of the stream between plaintiff's lands "abutting on each side thereof, and intermittently cast for and caught fish in said channel, shot at and killed wild ducks floating thereon or in flight thereover, in violation of plaintiff's right of possession and control of the channel of said stream, to plaintiff's damage in the sum of $ 10"; that on that day and while on said fishing and hunting expedition the defendant rowed the boat to the west bank of the stream and there moored the same above the ordinary low-water mark of the stream and thereafter while fishing in the river "walked and tramped along said bank on the land of plaintiff, above the ordinary low-water mark and in and above the ordinary high-water mark, and between said water marks, tramped upon and destroyed native and planted grasses upon said land," in violation of plaintiff's right and to his damage…

After defendant's general demurrer to the several causes of action was overruled he declined to answer and his default was entered. Upon the suggestion of counsel for plaintiff that only nominal damages would be demanded, the court rendered judgment in favor of the plaintiff for damages in the sum of $ 1 upon the eight causes of action collectively, with costs of the action. From this judgment the defendant has appealed.

It must be held that when the defendant, although standing upon the land of another, fired a shotgun over plaintiff's premises, dwelling and cattle, he interfered with "the quiet, undisturbed, peaceful enjoyment" of the plaintiff, and thus committed a technical trespass at least. The plaintiff was the owner of the land. Land, says Blackstone, in its legal signification has an indefinite extent, upwards as well as downwards: whoever owns the land possesses all the space upwards to an indefinite extent; such is the maxim of the law…

Sir Frederick Pollock, in the tenth edition of his valuable work on Torts, page 363, observes that it has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as a shot fired from a gun, to pass over it…

Continuing he observes: "As regards shooting it would be strange if we could object to shots being fired point blank across our land only in the event of actual injury being caused, and the passage of the foreign object in the air above our soil being thus a mere incident and a distinct trespass to person or property." But he concludes that when one takes into account the extreme flight of projectiles fired from modern artillery which may pass thousands of feet above the land, the subject is not without difficulty. That shortly it will become one of considerable importance is indicated by the rapid approach of the airplane as an instrumentality of commerce, as is suggested in a valuable note found in 32 Harvard Law Review, 569. However, it seems to be the consensus of the holdings of the courts in this country that the air space, at least near the ground, is almost as inviolable as the soil itself… It is a matter of common knowledge that the shotgun is a firearm of short range. To be subjected to the danger incident to and reasonably to be anticipated from the firing of this weapon at water fowl in flight over one's dwelling-house and cattle would seem to be far from inconsequential, and, while plaintiff's allegations are very general in character, it cannot be said that a cause of action is not stated for nominal damages at least…

The judgment is affirmed.