The opinion of the court was delivered by
Williams, Ch. J.— From the request made to the court to instruct the jury, it would appear that some importance was attached to the time during which the cattle were in the possession of the plaintiff. The time during which they remained in the plaintiifs possession is of no importance. The manner in which they came there was of more consequence. The right of the owner of personal chattels to enter on the possession of another to reclaim property, may depend entirely on the manner in which the possession was obtained. The controversy between these parties, was, as to the ownership of the cattle, and probably neither of them supposed that the decision of the suit would depend on the enquiry, *276whether a technical trespass was committed by the entry on the land of the plaintiff. The enquiry now is, whether, from the facts, as set forth in the case, the court, in answer to the request of the plaintiff, gave erroneous instructions to the jury. It appears to be well established, that if one man takesV the goods of another and puts them on his own.land, the! owner may enter and take them, and, also, that if a stranger* by wrong, takes the cattle of another and puts them upon the land of a third person, by his assent, the owner may enter and retake them. This was the doctrine of the case of Chapman v. Thumblethorp, Cro Eliz. 329, in which it was contended the owner would not be justified in entering into the plaintiff's close to take out cattle, unless they were put there by the plaintiffs tort. The court held, that when the defendant’s beasts are taken from him, by wrong, and are not out of his possession by his own delivery, he may justify the taking of them in any place where he may find them. Mr. Hammond, in his treatise on the law of nisi privs, p. 153, lays down the proposition, generally, that the proprietor of goods and chattels has authority, by law, to enter the land of another upon which they are placed, and remove them, provided they are there without his default. Possibly this proposition may be laid down more extensively than the authorities will warrant, though it appears to me that he is sustained by the current of authorities. It never has been questioned but that if tiie goods of one are in the possession of another, without any fault of the owner; and by the 'rfrongful act of the person in possession;^tinyowner may reclaim them; and this, in my opinion, is decisive of the case before us. The heifers were the property of the defendant. This is established by the verdict of the jury. No evidence is given in what manner they escaped from his possession, nor is there any evidence how they came into the possession of the plaintiff, so that no fault is attributable to either party so far. The plaintiff did not claim to retain them as estrays, but claimed to own them, and forbade the defendant to enter his premises. After knowing the defendant’s claim to the cattle, and as the plaintiff was not and could not be the owner of them, if the verdict of the jury is right, his keeping them in his possession for a long time and setting the owner at defiance and forbidding him to enter his premises, though it *277might be to examine or reclaim his property, was a wrongful act of the plaintiff, and the cattle remained and were in his enclosure, at the time they were taken, by his own wrong.
The case of Taylor v. Fisher, Cro. Eliz. 246, relied on by the plaintiff’s counsel, will be found not to militate against the principles before mentioned. In that case, the defendant relied upon a license from the plaintiff’s wife to enter and take the goods, without stating how they came into his possession, and the license failing, for want of authority in the wife to grant it, the justification failed. It is to be observed that the goods, claimed by the defendant,-in that case, were in the house of the plaintiff, at the time the defendant purchased them, and inasmuch as tire defendant did not set forth, in his plea, how they came there, or whether it was without fault of the owner, the plea was ill.
It was urged, in the argument, and a passage was read from Blackstone’s Commentaries, and another from Swift’s Digest, in support of the proposition, that a person cannot enter the grounds of a third person to r.efake property, unless it is feloniously stolen. The case from Roll’s Reports, on which these dictum^ are founded, make this distinction» that, if property is feloniously stolen, the owner may pursue and take it wherever it is found, although the person in whose custody it is found, never consented to its being placed there. But, if it is taken, not feloniously, and put upon the land or enclosure of another, against his will and without his consent, he shall not be exposed to another trespass by the owner of the property. A distinction was made between a felony and a trespass, probably, because the owner of the cattle had no remedy against the felon, but had against the trepasser. But, in the latter case, if he consented to have the goods put into his possession, the right of the owner to enter • and retake them was recognized, and I have already remarked that the claim of property,by the present plaintiff, and his retaining the cattle after notice of the defendant’s right, was equivalent to a consent to receive the cattle from a wrong doer in the first place, or, at any rate, made the plaintiff himself a wrong doer. Judge Swift, in his Digest, recognizes this right of the owner to enter the land pf another and take his goods, not only when they are stolen, but, also, when they are put *278there by the owner of the land, or by a stranger with his consent. In the case of Heermancé v. Verney, 6 Johns. R. 5, relied on by the plaintiff’s counsel, the defendant showed no title to the personal property, his witnesses being rejected as incompetent. What would have been the decision as to the entry, under different circumstances, we do not know. The case of Blake v. Jerome, 14 Johns. R. 406, came before the court upon certiorari. The court intimated that the entry on the land was a trespass, but the ground of their affirming the judgment, was, that the evidence, as to the ownership of the property, was so questionable that the judgment should not be disturbed. In neither of the cases was there any plea of justification, though, in the latter, there was a notice of justification as to the personal property, only. The court might be warranted in saying that the action was technically supported, as no plea justified the trespass. In neither of the cases, does it appear to have been investigáted or decided under what circumstances the owner of personal property may enter the land of another to take it, nor can they be considered as decisions on the question now before us. In the absence of any testimony as to the manner in which the heifers in question came’*into the enclosure of the plaintiff, when it may as well be presumed that they came there with his consent and without any neglect of the defendant, as the contrary, and when they were evidently detained by him under a wrongful claim, we consider the defendant was justified in entering the enclosure to take his own property, and the fact of his having entered at any other time, or for any other purpose, is negatived by the verdict of the jury. The question as to breaking and entering the close, was, comparatively, of small importance in the case, and neither party prepared the case with a view to that alone. Nor could the plaintiff admit the ownership of the cattle, and contend that they were in his possession without his consent and by the tort of the defendant, without abandoning the real subject in dispute. The judgment of the county court is therefore affirmed.