Case of the Day – Friday, December 10, 2021


Go, Roughriders!

Go, Roughriders!

There seems to be so much to do in the Christmas season that I can never catch up, and rarely can I get one task completed for all of the other tasks awaiting my attention. My bride of 40 years and I bought our Christmas tree two weeks ago. It took us five days to even get it inside and up. It took another five days to get the lights on. The poor tree still awaits decorations.

I note this as an excuse. A week ago, I addressed the first half of the question asked by alert sixth-graders at Western Reserve Elementary School (home of the Roughriders). It’s taken me until today to continue that thread: Today, we look at another decision from the days of yore to gain a better understanding of the issue they raised: if your apple tree drops its apples in the neighbors’ yard, do you have the right to go on to their land to pick them up?

Remember these guys? They apparently had 19th century doppelgangers.

Remember these guys? They apparently had 19th-century doppelgangers.

Neil Sedaka warned us about bad blood, although about 120 years too late for Newkirk and Sabler, the two actors in this little drama. It’s pretty clear from reading between the lines of this antebellum case that these neighbors loathed each other. Sabler told Newkirk to stay off his land, so Newkirk, of course, couldn’t resist having his guy cut across Sabler’s back 40 with a team of horses. Not to be outdone — sort of like a 19th-century version of “Spy vs. Spy” — Sabler rebuilt the fence Newkirk’s man had taken down, but he nailed it in place. The hired hand couldn’t get the horses and wagon out of the field, so he left them on Sabler’s land and retrieved his boss. The boss returned and started tearing down the fence when Sadler arrived. Words flew, tempers flared, and fisticuffs ensued.

After Newkirk apparently won the fight and got his horses back, he sued Sadler for assault, intending to add insult to injury. But the court threw the last punch, holding that Newkirk had no right to enter onto Sadler’s land to get property he wrongfully put there to begin with, and Sadler had every right to bean Newkirk with a club (which he had done) to keep him off.

Relevant to the question we considered last week, the court differentiated between this case and other situations — including an apple tree owner’s apples falling on a neighbor’s land. When a fruit tree drops its bounty on the neighbor’s land, the tree’s owner cannot prevent it. The owner continues to own the fruit, the court observed, and he or she may enter the neighbor’s land without being deemed a trespasser to collect the fallen fruit.

Unfortunately, this much of the opinion is obiter dictum, unnecessary to the decision, and thus is of limited value as precedent. Nevertheless, kids, it’s the best we have. Sometimes the answers just aren’t all that clear.

horsewagon140218Newkirk v. Sabler, 9 Barb. 652 (Sup.Ct. N.Y. 1850). Newkirk had sent his servant with a team and wagon across the defendant’s farm — upon which he entered by taking down the bars — to a neighbor’s house, even though Sabler had forbidden Newkirk from crossing his lands. On his return of the team to the place where it had entered, the servant found the fence bars had been refastened by boards nailed over them. The servant couldn’t break through, so he left the team and wagon on the Sabler’s property and returned to Newkirk’s to tell him what had happened.

Newkirk went with his servant to the fencerow and tore down the fence to get his team and wagon out. Sabler arrived on the scene and forbade Newkirk from taking down the fence, and when Newkirk continued, a fight ensued between the parties. At one point, Sabler beat on Newkirk with a pole. Nevertheless, Newkirk finally got the fence down, removed his team, and then — to add insult to injury — sued landowner Sabler for assault.

At trial, the judge instructed the jury that although Newkirk’s team and wagon were wrongfully on Sabler’s land, it was Newkirk’s duty and right to get them off with the least possible injury to the premises, and that Sabler was not justified in using violence to prevent him from removing his team from the premises. The jury found for Newkirk.

Sabler appealed.

Held: Newkirk had no right to enter onto Sabler’s land to reclaim his horses. Sabler had a right to defend his possession against Newkirk’s tearing down the fence and use as much force as necessary to prevent Newkirk from entering the property. The court held that an owner of personal property detained on the land of another — if he cannot obtain peaceable possession of it — may only bring suit in court to regain his property. Of interest, however, is the recognition in this early decision of a number of circumstances where the owner of a chattel — that is, personal property — may enter on the land of another without being found to be a trespasser.

appletree140217One example is a landlord’s right to inspect the premises to ensure the tenant is not engaged in waste. Others include a sale of land with a reservation of the timber rights, or if one enters the land of another to prevent the landowner’s livestock from dying, or because the public highway is blocked and he must get around the blockage. And the court held, “If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. And the same rule prevails where fruit falls on the land of another. But if the owner of a tree cut the loppings so that they fall on another’s land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it.”

In this case, the court held, Newkirk’s horses and wagon were on Sabler’s lands where they had been left by Newkirk’s servant. They were not there with Sabler’s permission. Instead, Newkirk had been guilty of trespass in sending his team across Sabler’s lands after he had been forbidden to do so. And Sabler had the right to detain them before they left the premises, and it was not necessary to decide whether the defendant detained the property rightfully or wrongfully. If Newkirk could not regain the possession of his property peaceably, his only choice was to sue.

– Tom Root


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