1. The facts as they would appear from the judgment of the Subodinate Judge of Ootacamund are that the third defendant had erected a hedge round his field and that, despite this protection, pigs had been entering the field and causing damage to the potato crop. In order to protect the crop against pigs, the third defendant had laid a number of traps round the perimeter of his field and near the traps' had cut open the hedge, presumably in order that pigs which came there with the intention of entering the field, would enter through these gaps rather than elsewhere, in which case they would be likely to fall into the traps. The plaintiff, a neighbour, kept a cow. There is no evidence that the defendants knew of the existence of the plaintiff's cow. One would have expected that the plaintiff would have known the existence of the gaps in the hedge, though there is no definite finding by the learned Subordinate Judge on that point. One morning, it was found that the plaintiff's cow had wandered through a, gap in the hedge separating the plaintiff's compound from the defendant's land and had fallen into the trap near the gap and had been killed. Plaintiff thereupon filed this suit, which was dismissed.
2. The question is, what duty, if any, was cast upon the defendants with regard to trespassing animals. In Pouting v. Noakes (1894) 2 Q.B. 281 the plaintiff's horse put his head across the hedge separating its master's land from the defendants land and ate the leaves of a yew tree growing on the other side of the hedge, as a result of which the horse died. It was argued that this yew tree was a nuisance and that the defendants were consequently liable to the plaintiff in damages. It was held that there was no nuisance and that no liability lay on the defendants of protecting animals that might trespass upon their land, even though the yew tree was within easy reach of animals on the other side of the hedge. A most important case is Dedne v. Clayton (1817) 7 Taunt 489 : 129 E.R. 196 in which the defendant had attempted to protect the hares in his grounds by implanting spikes at the bases of trees bordering his neighbour's land. The plaintiff, who was shooting on the neighbour's lands, was accompanied by his dog; and the dog, in pursuit of a hare, crossed the boundary into the. neighbour's lands and ran against one of the spikes and was killed. In that case there was a difference of opinion between the learned Judges, two holding that the plaintiff was liable in damages and the other two holding the other way. We do not know what eventually happened in that case; but an almost precisely similar case came before the Courts in Jordin v. Crump (1841) 8 M. & W. 782 : 151 E.R. 1256 where the learned Judges followed the reasoning of Gibbs, G.J., in Deane v. Clayton (1817) 7 Taunt 489 : 129 E.R. 196 who was in favour of passing judgment against the plaintiff, and the learned Judges held that the defendant was entitled to protect himself and his land against trespassing animals, even though he knew that his neighbour's dogs might be killed as a result of the trespass. This case was. approved of and followed in Ponting v. Noakes (1894) 2 Q.B. 281
3. The learned advocate for the petitioner, while not denying the general principle that the owner of a land is entitled to protect his land and crops growing thereon against trespassers, argues that the present case comes within that category of cases where the defendant had laid a trap, which he was not permitted in law to do. In particular he relies on Townsend' v. Wathen (1808) 9 East 277 : 103 E.R.579 That was a case in which the owner of a land, in order to rid himself of dogs and other vermin, constructed a number of traps in, his grounds and baited those traps with fish and highly flavored meat, with the result that dogs passing along the highway were drawn into the land and consequently trapped and killed. The owner of one such dog brought a suit against the defendant; and it was held that the defendant was liable, because no distinction could be drawn between forcibly taking a dog into the-field and killing it and attracting it into the trap by some luring bait, into which the dog would be drawn by following its natural instincts. It is argued that the case here under consideration is similar in principle to Townsend v. Wathen (1808) 9 East 277 : 103 E.R. 579. Mr. O.T. G. Nambiar points out that since the hedge was the third defendant's, which he was under no obligation to erect, his responsibility was no greater than if they had erected no hedge at all. It seems to me, however, that a distinction can be drawn, because in this case the cow could enter only by a, particular opening in the hedge; and if he did so, it was highly probable that he would fall into the tram). However, the fundamental distinction between the present case and Townsenm v. Wathen (1808) 9 East 277 : 103 E.R. 579 is that in that case the intention of the third defendant vas to lure dogs into his grounds in order that they should be killed; but here there is no reason to believe that the third defendant even knew of the existence of the cow, still less that he lured, or intended to lure, the plaintiff's; cower even pigs for that matter-into the trap The most that can be said is that he should have known, if he had stopped and thought about it that if pigs could enter by the openings in the hedge and fall into the trap, cows and other animals might do the same. From the cases cited before me, however. it seems that the only exception to the general law, that a person is under no duty towards a trespasser are (1) that he cannot do something which is dangerous to a trespasser if he knows or has reason to believe that the trespasser is already on, or may be on, his property and (2) that he cannot do anything to lure on to his- land and kill animals who would keep outside his land but for the allurement It may be the nature of a cow to wander here and there in search of pasture; and in so doing it might well walk through the gap in the hedge; but it does not seem: to me that its being able to do so is the same thing as saying that the third defendant lured the animal into his field. It is conceded that if a person negligently left the gate of his premises open and a cow came through that gate and caused damages, 'the owner of the cow would be liable; and I do not think that the owner of the property in such a case would be liable in damages to the owner of the trespassing animal for injury to the animal, merely because he had taken no precautions to protect the trespassing animal against injury.
4. In the circumstances I find myself in agreement with the lower court and. accordingly dismiss this petition with cost.