the purpose, but must act at his peril unless the act complained of is in fact a nuisance.' In the exercise of the right to abate a nuisance the party must act with great caution and do as little injury as may be, and avoid all violence. His act is in the nature of a preventive remedy and will not bar a subsequent action for the damage already done by the nuisance.2

The individual has also the right to defend his person and property, and the person and property of anyone standing in the relation to him of wife, child or servant,

1

1 People v. Board of Health, 140 N. Y. 1, 37 Am. St. Rep. 522; Miller et al. v. Burch, 32 Tex. 208; Graves v. Shattuck, 35 N. H. 257.

2 Pierce v. Dart, 7 Cow. 609. "Nuisances by act of commission are committed in defiance of those whom such nuisances injure; and the injured party may abate them without notice to the party who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees overhanging a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees, is a most unequivocal act of negligence, which distinguishes this case from most of the other cases which have occurred. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of Lord Hale, and appeal to a court of justice." Best, J., in Earl of Lonsdale v. Nelson, 2 B. & C. 302, 311. See also, on the requirement of notice, State v. Parrott, 71 N. C. 311; Meeker v. Van Rensselaer, 15 Wend. 397.

or the reciprocal thereof. But such defense must be limited to the necessity which allows it.

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

3 Cooley on Torts, 58, citing, Kirby v. Foster, 17 R. I. 437, 14 L. R. A. 317; Com. v. Donahue, 148 Mass. 529, 2 L. R. A. 623; Barr v. Post, 56 Neb. 698. The same author cited, continues: "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." Page 53. Citing, Chapman v. Thumblethorp, Cro. Eliz. 329; White v. Twitchell, 25 Vt. 620; Hopkins v. Dickson, 59 N. H. 239; Burt v. Blake, 14 Ill. App. 324. See also, Chadman's Cyclopedia of Law, Vol. X, 180.

In a late case, Walker Furniture Co. v. Dyson, cited in 19 L. R. A. (N. S.) 607, it is held that, where a conditional vendee of

Because it would be unjust to allow one person to obtain title to the property of another by his own wrongful act, and thus compel the other to relinquish his title and resort to a suit for damages, it is lawful for one whose property has been seized wrongfully to reclaim it, though the other party has altered its form, providing it can be traced and identified. The exceptions to this rule, are cases where the thing taken has been made a part of some larger and more valuable property, as stone built into the walls of a house, here the thing taken is said to become the property of the wrongdoer by accession, and the injured party must resort to a suit for damages.* personalty, who in the contract or agreement, stipulates that, upon failure to make the required payments, the vendor may take possession of the property and remove the same, cannot recover against the vendor in trespass for using only necessary force in retaking the property, requisite to overcome resistance wrongfully interposed by him.

4 "It is on all hands conceded that where the appropriation of property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the value of the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the value of the article as it was before the conversion. But where

the identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush. Perhaps no

Akin to the right of recaption is the right of the owner of lands to re-enter and repossess them when one has wrongfully assumed the possession of them. But here also the right to re-enter is limited to such an entry as may be made without force or violence.5

The right to distrain and hold cattle found damage feasant is a common law right, but regulated by statute. The party injured by the trespassing cattle has the right to take them into his custody while they are still on his land, and hold them until the damage is estimated and paid. Notice must be given to the owner, the detention being merely for the purpose of indemnity, and where the compensation cannot be agreed upon, disinterested appraisers are selected to assess the amount. Until satisfaction is made the distrainor is under the duty of feeding and caring for the animals. Distress of goods is

6

case has gone further than Wetherbee v. Green (22 Mich. 311, 7 Am. Rep. 653), in which it was held that one who, by unintentional trespass, had taken from the land of another young trees of the value of twenty-five dollars, and converted them into hoops worth seven hundred dollars, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established." Isle Royal Mining Co. v. Hertin, 37 Mich. 332. Where one, has wilfully, as a trespasser, seized the property of another and changed its form by the expenditure of labor and money, he may not claim the altered property as his own. See, Church v. Lee, 5 Johns, 348; Burris v. Johnson, 1 J. J. Marsh, 196; Strubbee v. Trustees, 78 Ky. 481; Eaton v. Langley, 65 Ark. 448; 47 L. R. A. 474; Silsbury v. McCoon, 3 N. Y. 379; Holt v. Hayes, 110 Tenn. 42.

5 Cooley on Torts, 61.

McPherson v. James, 69 Ill. App. 337; McKeen v. Converse,

also allowed in some cases to secure or compel the performance of a duty or obligation owing by one to another. In some states the common law right remedy of distress for rent still maintains. This consists in the right of the owner of the premises to distrain all movable articles found in the possession of the tenant for the payment of rent due and unpaid."

Sec. 401-10. THE GENERAL METHOD OF REDRESS FOR TORTS IS BY ACTION.— While in some cases the law permits the party, under certain restrictions, to redress an injury done him by his own act, the great majority of cases of civil injuries must be redressed, if at all, by an action at law, as the public peace and order are regarded as being of more importance than the immediate right of the party to redress. The courts are always open, and in most cases of an alleged injury the party wronged and the one responsible for the injury cannot agree on the facts or extent of the injury, so the only orderly and satisfactory way to adjust the matter is in the courts of law, where the plaintiff and defendant may set up their respective contentions, and the transaction be submitted to unbiased and disinterested arbitrators of the law and facts, and decided according to the fixed rules of law established in similar cases.

The redress which the law gives is calculated to the

68 N. H. 173; Taylor v. Welby, 36 Wis. 42; Eames v. Salem & Lowell R. R. Co., 98 Mass. 560.

7 Cooley on Torts, 63; 1 Bl. Com. 8; Kleber v. Ward, 88 Pa. St. 93; Bird v. Anderson, 41 N. J. L. 392.