Torts > Torts Keyed to Epstein > Strict Liability And Negligence: Historic And Analytic Foundations
The Thorns Case
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Citation. Y.B. Mich. 6 Ed. 4, f. 7, pl. 18 (1466).
Brief Fact Summary.
Defendant cut thorns from a hedge. These thorns landed on Plaintiff’s land and Defendant entered Plaintiff’s land to retrieve them. Plaintiff brought suit for trespass.
Synopsis of Rule of Law.
If one does harm to the person or property of another, he is liable for the damage he causes even if it is an unintentional, lawful act that has caused the damage.
Defendant owns one acre of land that adjoins Plaintiff’s five acres of land. Defendant cut a thorn hedge located on his property. Against Defendant’s will, the cut thorns landed on Plaintiff’s land. Defendant entered Plaintiff’s land to take the cut thorns. Plaintiff sued Defendant for trespass.
Is Defendant liable for trespass for the lawful cutting and unintentional dropping of the thorns onto Plaintiff’s land?
Yes. Judgment for the Plaintiff. The Thorns Case is an old English case. There is a debate among five lawyers followed by the opinions of two judges.
* (C.J. Choke) When the principal thing is not lawful, then the thing, which depends upon it, is not lawful. When Defendant cut the thorns and they fell on Plaintiff’s land, the falling was not lawful, so Defendant’s coming to take them away was not lawful. Defendant should have plead that he could not do it in any other manner or that he did all that was in his power to keep them out.
Two lawyers write dissenting opinions. They believe Defendant should not be liable to Plaintiff for trespass.
* (Catesby) If Defendant does a lawful act and thereby damage comes to Plaintiff against Defendant’s will, Defendant shall not be punished. Defendant’s cutting was lawful and the falling on Plaintiff’s land was against Defendant’s will, thus the retaking was good and lawful.
* (Younge) Plaintiff has no tort and has no reason to recover damages. When Defendant came onto Plaintiff’s property to take the thorns which had fallen onto it, this entry was not tortious, for when Defendant cut them and they fell on Plaintiff’s land, the property in them was Defendant’s and thus it was lawful for Defendant to take them of the land. In doing so, if Plaintiff does not have damage, then Defendant has done no tort.
Concurrence. Concurring opinions are written by the remaining three lawyers and one judge.
* (Fairfax) There is a difference when a man does a thing from which felony ensues and one from which a trespass ensues.
* (Pigot) If a man had a fishpond in his manor and he empties the water out of the pond to take the fishes and the water floods my land, I shall have a good action; and yet the act was lawful.
* (Brian) When any man does an act, he is bound to do it in such a manner that by his act no prejudice or damage is done to others. The fact that the act was lawful does not relieve Defendant of liability
* (J. Littleton) If a man suffers damages, it is right that he be compensated. In this case, it is proper for Defendant to make amend to what he has done.
One who voluntarily does an act that results in damage to another’s property is responsible for the damage even if the act was lawful. Since Defendant’s actions caused Plaintiff’s damages, he is liable in tort. The majority opinion adopts a rule of strict liability.