Clark v. Keliher

Massachusetts Supreme Judicial Court

Clark v. Keliher

107 Mass. 406

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 15, 1871

StatusPublished

Cited by21 cases

This text of 107 Mass. 406 (Clark v. Keliher) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Keliher, 107 Mass. 406 (Mass. 1871).

Pincite

Opinion

Ames, J.

1. The notice to quit was sufficient and lawful, both in substance and in the mode of service. There was no uncertainty as to the party from whom it emanated or the tenement to which it applied, and there could have been no doubt that it was meant for the family occupying that tenement. The mistake in the Christian name of the tenant was therefore of no importance ; and as on account of his absence the notification could not' be delivered to him personally, it was properly served by leaving it at his dwelling-house, in the hands of his wife. Doe v. Spiller, 6 Esp. 70. Jones v. Marsh, 4 T. R. 464. Blish v. Harlow, 15 Gray, 316. Walker v. Sharpe, 103 Mass. 154.

As the estate of the tenant in the premises had been regularly terminated, and ample time and opportunity had been allowed him for the removal of his furniture, he has no ground of complaint as to the manner in which the defendant took possession. Meader v. Stone, 7 Met. 147. Curtis v. Galvin, 1 Allen, 215.

2. But the act of killing the plaintiff’s hens was without legal justification. It is admitted that a landowner has no right to kill his neighbor’s cattle when found trespassing, but must content, himself with his legal remedies, of impounding, or bringing a suit at law. The destruction of valuable property is not necessary to the protection of his rights. And this rule applies as well to feathered animals not ferce naturce, as to larger and more valuable animals. Animals fully reclaimed and used for burden, husbandry or food, are property of intrinsic value, and as such are under legal protection. Blair v. Forehand, 100 Mass. 136, 140. The notice given of his intention to kill them would be a mere threat to do an illegal act, and would not vary the case. It has [410]*410been decided in Connecticut, that the poisoning of a man’s hens, after complaint of repeated trespasses, and warning of an intent to kill them, was a wrong for which an action would lie, and we concur with the reasoning of the court in that decision. Johnson v. Patterson, 14 Conn. 1. *

Judgment for the plaintiff for $5, and interest.

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Ames, J.

1. The notice to quit was sufficient and lawful, both in substance and in the mode of service. There was no uncertainty as to the party from whom it emanated or the tenement to which it applied, and there could have been no doubt that it was meant for the family occupying that tenement. The mistake in the Christian name of the tenant was therefore of no importance ; and as on account of his absence the notification could not' be delivered to him personally, it was properly served by leaving it at his dwelling-house, in the hands of his wife. Doe v. Spiller, 6 Esp. 70. Jones v. Marsh, 4 T. R. 464. Blish v. Harlow, 15 Gray, 316. Walker v. Sharpe, 103 Mass. 154.

As the estate of the tenant in the premises had been regularly terminated, and ample time and opportunity had been allowed him for the removal of his furniture, he has no ground of complaint as to the manner in which the defendant took possession. Meader v. Stone, 7 Met. 147. Curtis v. Galvin, 1 Allen, 215.

2. But the act of killing the plaintiff’s hens was without legal justification. It is admitted that a landowner has no right to kill his neighbor’s cattle when found trespassing, but must content, himself with his legal remedies, of impounding, or bringing a suit at law. The destruction of valuable property is not necessary to the protection of his rights. And this rule applies as well to feathered animals not ferce naturce, as to larger and more valuable animals. Animals fully reclaimed and used for burden, husbandry or food, are property of intrinsic value, and as such are under legal protection. Blair v. Forehand, 100 Mass. 136, 140. The notice given of his intention to kill them would be a mere threat to do an illegal act, and would not vary the case. It has [410]*410been decided in Connecticut, that the poisoning of a man’s hens, after complaint of repeated trespasses, and warning of an intent to kill them, was a wrong for which an action would lie, and we concur with the reasoning of the court in that decision. Johnson v. Patterson, 14 Conn. 1. *

Judgment for the plaintiff for $5, and interest.

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Bluebook (online)

107 Mass. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-keliher-mass-1871.

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