4 Tenant in Common may become estopped to demand partition by his covenant that the land shall be held in common: Martin v. Martin, 170 Ill. 639, 62 Am. St. Rep. 411. See, further, the note to Wakefield v. Van Tassell, 95 Am. St. Rep. 218.

WHITTAKER v. STANGVICK.

[100 Minn. 386, 111 N. W. 295.]

TRESPASS-Extent of Damage.-To constitute trespass to land, neither the extent of the damage nor the form of the instrumentality by which the close is broken is material. (p. 705.)

INJUNCTION Against Shooting-Increased Hazard-Nuisance. As the hazard from the use, or threatened use, of dangerous instrumentalities, such as shotguns, to land owners increases, the responsibility of the persons employing them becomes stricter and may amount to an insurance of safety, and all remedial resources of law and equity may be exercised to prevent such peril to person or property, or to prevent conduct likely also to result in a breach of the peace. (p. 707.)

INJUNCTION Against Use of Shotguns.-Shooting shotguns over another's land, so as to cause considerable damage, and impair the value of the land owner's shooting privileges, is such a wrong as may be restrained by injunction. (p. 707.)

Parsons & Brown, for the appellant.

N. T. Moen and F. H. Peterson, for the respondents.

387 JAGGARD, J. The plaintiff and appellant sought to perpetually enjoin defendants and respondents from constructing covers or blinds on the surface of a lake in front of a strip of land, to which plaintiff claimed ownership, separating two navigable lakes; from hunting or shooting ducks or other water fowl therefrom; and from shooting across or over the strip of land. The court ordered judgment for the defendants, after trial. This appeal was taken from the order denying a motion for a new trial. The essential question here is whether the decision was justified by the evidence and was consistent with law.

The court found the facts as follows: The plaintiff owned the long, narrow strip, and accretions, extending to a creek connecting the waters of the lakes, which formed what is known as a "duck pass. Although there was a public highway over the duck pass, by virtue of an agreement with the supervisors of the township the plaintiff had the right of

fishing and hunting thereon to the same extent as though the road had not been laid out. The defendants and other persons wrongfully had previously gone on plaintiff's land at the highway and shot ducks and water fowl, and now threaten to continue to do so. The effect of the acts was to practically monopolize the shooting privileges and to largely impair the value of the privileges to the plaintiff and her guests. The defendants had been previously restrained by an order of the district court from going upon the highway for the 388 purpose of hunting, and from hunting or shooting ducks or other water fowl upon the highway. "That the said defendants have heretofore erected, and intend and threaten to hereafter erect, upon the surface of Upper Ten Mile lake, directly in front of the said pass, and at a distance of about three hundred and twenty-five feet from the shore line thereof, certain covers or blinds, with the purpose and intention of shooting therefrom the wild ducks and other water fowl flying over said pass, and that in hunting said game defendants are liable to shoot over plaintiff's said land. That said lake is of large extent, and it is not necessary for the mere purpose of hunting or shooting the said wild fowl, that said defendants should locate such cover or blinds at the place above mentioned. That the probable result of such acts on the part of the defendants will be to injuriously affect the facilities for shooting wild fowl afforded by said pass; and as a consequence thereof the value of said shooting privileges will be to a considerable extent impaired."

There was testimony to the effect that a shotgun would carry shot "probably four hundred feet, maybe more than that." In consequence, when persons in the blind would shoot toward plaintiff's place, "the shot could not help but drop around [plaintiff's] place, on the point, in the woods, or in the timber, or across this point here. A certain amount of the shot would go over the pass. From thirty to fifty per cent of the shot would go over the land and on the pass. It depends on the winds, and which way the ducks fly. . . . . In shooting ducks flying from the north, south, some of these ducks in the ordinary course of shooting naturally would fall when they were killed, on this pass.

1. The first question is whether the facts found show a trespass. Defendants urge that the falling of the shot and of ducks on plaintiff's land not having been shown to "become a nuisance to her, certainly could not be sufficient to

constitute a trespass on the part of the defendants. The old maxim that the law does not concern itself with trifles might well be invoked here." This contention involves a misapprehension of the law of trespass.

With respect to damages as an essential, the common law recognizes two kinds of actions. In the first class, there is a direct invasion of another's person or property without permission, which is actionable 389 per se, or which gives rise to a presumption of at least some damage, without proof of any actual damage. Unpermitted contact with the person constitutes assault and battery. Unpermitted invasion of premises constitutes a trespass quare clausum fregit. In the second class, actions on the case, in which the damages are indirect and consequential, there can be no recovery unless the plaintiff shows, as an essential part of his case, that damages, pecuniary in kind, proximate in sequence, and substantial in extent have resulted. In trespass quare clausum fregit, it is immaterial whether the quantum of harm suffered be great, little, or inappreciable. It is true that in McConico v. Singleton (S. C. 1818), 2 Mill's Const. 244, Mr. Justice Johnson held that the owner cannot prevent others from hunting wild game on uninclosed and uncultivated lands, because to recover in trespass you must prove some actual injury. One quaint reason assigned was the public concern that there should be hunters to form a competent militia to oppose that great danger to free institutions, a standing army. It is elementary that the general rule is otherwise. For example, in Patrick v. Greenway (see Mellor v. Spateman, 1 Saund. 346b), the defendant angled in plaintiff's several fishery, but caught nothing. Plaintiff had a verdict, which was sustained because of the infringement of the right which could. hereafter be evidence of the exercise of the right by the defendants. And see, as to fisheries, 13 Am. & Eng. Ency. of Law, 2d ed., 584. As to general rule, Cooper v. Crabtee, per Jessel, M. R., 20 Ch. D. 592; Feize v. Thompson, 1 Taunt. 121; 1 Street on Foundation of Liability for Tort, p. 19; 46 Century Digest, "Trespass," sec. 15, col. 271, sec. 141, col. 480. Nowhere is the doctrine better expressed than by Lord Holt, in Ashby v. White, 2 Ld. Raym. 938, 1 Smith's Lead. Cas. 268: "If a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action; for it is a personal injury. So a man shall have an action against another for driving over his Am. St. Rep., Vol. 117-45

ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there." It is also entirely immaterial by means of what instrumentality the trespass is committed: See 46 Century Digest, "Trespass," sec. 8, col. 256. sec. 8, col. 256. One maliciously annoying another by means even of loud noises, consisting of pounding on tin pans, etc., and thereby injuring the health 390 and business of the latter, is guilty of trespass and liable for the injuries sustained: Shellabarger v. Morris, 115 Mo. App. 566, 91 S. W. 1005. To the same effect, see Donahue v. Keystone, 181 N. Y. 313, 317, 106 Am. St. Rep. 549, 73 N. E. 1108, 70 L. R. A. 761 (holding specifically that escape of gas from street mains may constitute a trespass), and Adams v. Rivers, 11 Barb. 390. "No doubt," said Landon, Jr., in Forbell v. City of New York, 164 N. Y. 522, 79 Am. St. Rep. 666, 58 N. E. 644, 646, 51 L. R. A. 695, "trespass may be committed by the projection of force beyond the boundary of the lot where the projecting instrument is operated. Injuries caused by explosion are familiar instances.'

More specifically, in the celebrated case of Pickering v. Rudd, 1 Stark. 56, 1 Ames' Cases on Torts, 42, Lord Ellenborough said: "I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close. The learned judge on the circuit with me doubted upon the point, but many with whom I afterward conversed on the subject thought I was right, and the judge himself who at first differed with me was afterward of the same opinion; but I never yet heard that firing in vacuo could be considered as a trespass. No doubt, if you could prove any inconvenience to have been sustained, an action might be maintained; but it may be questionable whether an action on the case would not be the proper form." To the same effect, see Prewitt v. Clayton, 5 T. B. Mon. 4. If a hunter shoot where he has a right to kill a bird in the air, and step upon the land of another to pick up the dead bird, the act of going onto the land to pick up the bird relates to the act of shooting, and the whole act one transaction, constituting a trespass at common law apart from the statute: Earl, C. J., in Osbond v. Meadows, 12 Com. B., N. S., 10. And see Mayhew v. Wardley, 14 Com. B., N. S., 550; State v. Shannon, 36 Ohio St. 423, 38 Am. Rep. 599.

It is true that in some of the cases referred to, and in L. Realty Co. v. Johnson, 92 Minn, 363, 104 Am. St. Rep. 677,

100 N. W. 94, 66 L. R. A. 439, the holding that trespass or some other enjoinable wrong existed was based upon an abuse of the highway. And see Harrison v. Duke [1893], 1 Q. B. 142; Hickman v. Maisey [1900], 1 Q. B. 752; Queen v. Pratt, 4 El. & Bl. 865.

Such cases are, however, at least significant illustrations of the extent to which the strictness of the law of trespass to realty, greater 391 than in cases of trespass to the person. has been carried: 1 Street on Foundation of Liability for Tort, 24.

Moreover, here the defendants proposed to inclose and make several to themselves that which belonged to the many. Did not the blind amount to "a clandestine encroachment and appropriation of navigable waters, which should be common to the public"? The precise nature, however, of defendants' act, whether it amounted to a purpresture (23 Am. & Eng. Ency. of Law, 2d ed., 528; 7 Words and Phrases, 5867), or to nuisance (see People v. Park & O. R. Co., 76 Cal. 156, 18 Pac. 141), or to both (see People v. Vanderbilt, 26 N. Y. 287; People v. Gold Run D. & M. Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152; The Idlewild, 64 Fed. 603, 12 C. C. A. 328), or to neither, need not be here determined. The defendants' right to properly use the navigable lakes did not give them any more right to shoot over plaintiff's land than a neighboring proprietor would have had to so shoot from his own premises. It has been definitely determined in this court that the neighboring proprietor may not lawfully do so: Lamprey v. Danz, 86 Minn. 317, 90 N. W. 578.

As

The mere fact that damage from falling shot or birds would be insignificant, as has been shown, has no logical bearing at all upon the question. The record, besides, conclusively shows substantial damage to the premises. At common law, trespass or case would have lain. The inherent danger to land owners from guns in the hands of hunters, often irresponsible and reckless, and sometimes malicious, must be adequately guarded against if the law is to be more than a name. the hazard from the use or threatened use of dangerous instrumentalities increases, in all branches of the law, the responsibility of the person employing them becomes stricter and may amount to insurance of safety. All remedial resources of law and equity may be exercised to prevent such peril to person or property, or conduct likely also to result in breach of peace.