be essential in all cases which were not of extreme urgency;' and in such cases this is obviously a very proper requirement.

Another limitation upon the right is, that in its exercise the party must inflict as little injury as possible.' The fact that he is taking the law into his own hands, imposes upon him a special obligation to keep clearly within the necessity which justi

fies it; and if he is guilty of wanton or unnecessary vio- [*49] lence, he is liable for the excess." A building is not to be destroyed merely because the use to which it is put is a nuisance ;*

nor because it has become offensive, if the cause of offense can otherwise be removed. The nuisance of a bawdy house is not in the building itself, but in the character of its occupation;' and a barn which has become offensive by reason of the accumulation of filth, is to be cleaned instead of destroyed, when cleaning is practicable. It is only where an erection or structure in itself constitutes a nuisance because of its being erected in a public street, or without right either on public or private grounds that its demolition and removal can be justified.'

Abatement of the nuisance by the act of the party aggrieved does not prelude an action for damages. "It is a preventive remedy merely, and resembles more an entry into land, or recapture of personal property. Neither will bar an action for the original invasion of the plaintiff's right."

4

Defense of Person or Property. The right to defend one's own person, the right to defend anyone standing in the [*50] relation *of husband and wife, parent and child, or master and servant, and the right to defend one's property, are rights given, not for the redress of injuries, but for their prevention. The right is limited strictly to the necessity, and the redress for any injury actually sustained must be sought by suit.

Recaption or Reprisal is a remedy by the act of the party himself, where any of his personal property, or any person to whose custody he is entitled, is taken or detained away from him. This consists in retaking the same into his own possession whenever or wherever he may peaceably do so. But this right is subordinate to the preservation of the public peace; for "the pub lic peace is a superior consideration to any man's private property," and "if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease; the

'King . Rosewell, 2 Salk. 459; Welch v. Stowell, 2 Doug. Mich. 332; Ely. Supervisors of Niagara, 36 N. Y. 297.

The nuisance of a pond of water is not to be abated by filling it up. Finley v. Hershey, 41 Iowa, 389. A tannery is not per se a nuisance, and should not be abated as such with

out proper legal proceedings. Mar-
shall . Street Commissioner, 36 N. J.
283.

Barclay. Commonwealth,
Penn. St. 503.

25

4 Pierce v. Dart, 7 Cow. 609, 613. See, also, Wetmore v. Tracy, 14 Wend. 250; State v. Moffett, 1 Greene, (Iowa)

47.

strong would give law to the weak, and every man would revert to a state of nature."1

In order to a correct understanding of this right of recaption, it is necessary to have in mind the different circumstances under which one's goods may be upon the premises of another, and the persons who may be responsible for their being there. It is a general rule, that the owner of real estate is entitled to exclusive possession thereof, and every unauthorized entry thereon is a trespass; but if one take the goods of another, and carry them upon his own land, the owner may enter to retake them, because the wrong of the other excuses the entry."

So if one, though not purposely a wrong-doer himself, has received possession from another whose possession was tortious, the *owner may enter to retake them; the tort [*51] feasor being incapable of conferring any better right than he himself had."

So if one sells goods which are in his own possession, and nothing in the contract of sale indicates that they are to be delivered elsewhere than where they are, the sale itself is an implied license to the purchaser to enter and take the goods away; and this license being coupled with an interest, is incapable of being revoked.

13 Bl. Com. 4: see Davis v. Whebridge, 2 Strob. 232; Hyatt v. Wood, 4 Johns. 150, 158; Evertson v. Sutton, 5 Wend. 281, 285; Higgins v. State, 7 Ind. 549; Sterling v. Warden, 51 N. H. 217; S. C. 12 Am. Rep. 80; Harris v. Marco, 16 S. C. 575. But the fact that a breach of the peace was committed in taking the property does not make the taking, if otherwise rightful, a trespass; it only subjects the party to a public prosecution. Brown e. Cram, 1 N. H. 171; Blades v. Higgs, 10 C. B. (N. 8.) 713; Mills v. Wooten, 59 Ill. 234.

'Chapman. Thumblethorp, Cro. Eliz. 329; Patrick v. Colerick, 3 M. & W. 483; Webb v. Beavan, 6 M. & G. 1055; Richardson v. Anthony, 12 Vt. 273; White . Twitchell, 25 Vt. 620; Spencer v. McGowen, 13 Wend. 256; Newkirk Sabler, 9 Barb. 652, 656; Burns v. Johnson, 1 J. J. Marsh, 196;

State Elliott, 11 N. H. 540; Sterling v. Warden, 51 N. H. 217, 228; Allen v. Feland, 10 B. Mon. 306; Chambers v. Bedell, 2 W. & S. 125; provided no more force is used than is necessary to accomplish it. Hopkins v. Dickson, 59 N. H. 235; Carter v. Sutherland, 52 Mich. 597. The owner of goods levied on as those of the judgment debtor may retake them from the officer. Burt v. Blake, 14 Ill. App. 324.

3 Trudo v. Anderson, 10 Mich. 357; Parish. Morey, 40 Mich. 417; McLeod v. Jones, 105 Mass. 403, 405; S. C. 7 Am. Rep. 539.

4 Wood v. Manley, 11 Ad. & El. 34; Giles . Simonds, 15 Gray, 441; Nettleton v. Sikes, 8 Met. 34; Miller v. State, 39 Ind. 267. The sale of growing trees gives a license to enter and cut within a reasonable time. Heflin v. Bingham, 56 Ala. 566. The doc

So where one, upon his own land, has been rightfully in posses-· sion of property, but his right has terminated and been acquired by another, the latter may lawfully enter to take it away; as in the case of a government officer, who may justify entering upon the premises of his predecessor to remove the public property there remaining. One who obtains property by a fraudulent purchase becomes a wrong-doer in respect to the possession so soon as the sale is rescinded for the fraud, and the vendor may reclaim it by peaceable entry. The right to retake the wrong-doer having put the chattel to such a use that removing it inflicts a damage upon him, but he must take all such risks as are incident to an exercise of the owner's right. And in any case, if one's property is on the land of another, with either the express or the implied assent of the latter, the former may enter to remove it, subject, we should

[*52] is not lost by

trine and the limitations upon it are thus stated by Wells, J. in McLeod v. Jones, 105 Mass. 403, 406: "A license is implied, because it is necessary to carry the sale into complete effect, and is therefore presumed to have been in the contemplation of the parties. It forms a part of the contract of sale. The seller cannot deprive the purchaser of his property, or drive him to an action for its recovery, by withdrawing his implied permission to come and take it. This proposition does not apply, of course, to a case where a severance from the realty is necessary to convert the subject of the sale into personalty, and the revocation is made before such sever

ance.

"But there is no such inference to be drawn when the property, at the time of the sale, is not upon the seller's premises, or when, by the terms of the contract, it is to be delivered elsewhere. And when there is nothing executory or incomplete between the parties in respect to the property, and there is no relation of contract between them respecting it, except what results from the facts of legal ownership in one and possession in

'Sterling o. Warden, 52 N. H. 197: see, also, the case of Burridge v. Nicholetts, 6 H. & N. 383. A tenant, after the relation is dissolved, may enter to reclaim his goods. Daniels v. Brown, 34 N. H. 456.

2 Wheeldon v. Lowell, 50 Me, 499: see Rea v. Shepard, 2 M. & W. 426. If one's cattle are found on the land of another, and there is no evidence how they came there, he may lawfully enter and reclaim them. Richardson v. Anthony, 12 Vt. 273.

3 White v. Twitchell, 25 Vt. 620. So where stone was tortiously taken from defendant's land by plaintiff to build a pier which defendant rightfully abated. Larson v. Furlong, 63 Wis. 323.

4 Nettleton v. Sikes, 8 Met. 34; Sterling v. Warden, 51 N. H. 217; S. C. 12 Am. Rep. 80; White v. Elwell, 48 Me. 360; Schoonover v. Irwin, 58 Ind. 287.

say, to this restriction: That notice should be given of the intent to do so, whenever, under the circumstances, it can reasonably be supposed that notice to the land-owner can be important to the protection of his own rights. The time and the circumstances, also, ought to be suitable; one should not enter his neighbor's house unannounced, or in the night time, to take away an article left there by permission, nor, if the chattel is under lock, break open doors or fastenings, without first making demand for its restoration. And if a third party shall take the property of one, and place it upon the land of another, without the consent or co-operation of either, while the latter, perhaps, might forbid the entry of the owner to remove it, and hold him a trespasser if he should persist in doing so, yet in that case he would be under obligation to restore it on demand, and the owner might proceed, by replevin, to take it, on his refusal."

But if the owner is himself a wrong-doer in leaving his property upon another's land, he must take the consequences of his wrongful act, and cannot, by an unlawful entry, acquire a right to make one that shall be lawful.

*The right of recaption may sometimes be exercised [*53] under circumstances which give to the party exercising it

'See Blades . Higgs, 10 C. B. (N. 8.) 713; Sterling o. Warden, 51 N. H. 217; S. C. 12 Am. Rep. 80, and cases cited. Drury . Hervey, 126 Mass. 519, a case of an entry in unreasonable manner to retake an article on breach of condition precedent to complete sale.

In Anthony v. Haney, 8 Bing. 187, it is intimated by TINDAL, Ch. J., that if the occupant of the freehold refused to deliver up the property, the owner might enter and take it, subject to the payment of any dam ages he might commit. But if he were liable in damages for the entry, it must be because the entry is unlawful; and in that case it might be resisted. There can be no such absurd ity as a right of entry and a co-existent right to resist the entry. The case of Chambers v. Bedell, 2 W. & S. 225, seems to recognize the right of the

owner, after the demand and refusal, to enter and take away his property, if he can do so peaceably. Compare Roach. Dumron, 2 Humph. 425. If one removes chattels wrongfully placed on his land he must act so as not unreasonably to injure the wrongdoer; Burnham v. Jenness 54 Vt. 272. 3 Anthony . Haney, 8 Bing. 187; Roach v. Dumron, 2 Humph. 425; Crocker v. Carson, 33 Me. 436; Blake v. Johnson, 14 Johns. 406; Heermance v. Fernoy, 6 Johns. 5; Chess v. Keley, 3 Blackf. 438. One of two tenants in common of a chattel has no right to break into the premises of the other to obtain it. Herndon v. Bartlett, 4 Porter, 481; Crocker v. Carson, 33 Me. 436. See further, Hupport v. Morrison, 27 Miss. 365; Allen v. Feland, 10 B. Mon. 306; Newbold . Sabler, 9 Barb. 57; Chase v. Jefferson, 1 Houst. 257.