(dissenting).
I am of the opinion that plaintiff failed to establish that defendant had committed a misdemeanor in his presence within the village of St. *226Croix Beach. He testified that he did not consider defendant’s first stop at the stop sign in St. Croix Beach a traffic violation but felt that his approach to it showed a tendency for carelessness and so decided to follow him. There was no evidence that defendant sought to escape plaintiff, or that he was aware that he had violated any law. He had seen plaintiff parked at the “Trading Post” but did not know plaintiff was following him until he turned into his driveway. The route he followed was the normal route to his home, and he testified that his speed in proceeding there had not exceeded 15 miles per hour.
At some point while plaintiff followed defendant as described, the cars crossed the line which separated the two villages, but the record does not establish when or where this occurred. Plaintiff testified that at times he had clocked his own car at up to 45 or 50 miles per hour in the 30-mile-per-hour speed zones, but he did not testify that this was in St. Croix Beach, or that this was the speed at which defendant was traveling. That it was not is evident from the fact that plaintiff gained IV2 blocks on defendant in a distance of about 1 mile.
As to careless driving, there was no evidence beyond plaintiff’s unsupported conclusion that defendant was guilty of this charge. There was no testimony that he operated or halted his vehicle carelessly or in disregard of the rights or safety of others or in a manner to endanger any person or property so as to be in violation of M. S. A. 169.13, subd. 3. There was no evidence of other traffic or pedestrians on this graveled side road. Plaintiff’s testimony indicated that defendant was not in his sight during most of the period in which plaintiff followed him, since he testified that he had lost defendant after the latter had gone over a hill crest and subsequently only viewed him turning corners until almost up to defendant’s driveway, and that on the route four such turns were required. He testified that defendant’s car threw dust as it made turns, but as the trial court stated: “It is common knowledge that if you drive on a graveled road that it is going to raise dust.”
Under § 629.34 no authority is vested in a police officer to arrest another without warrant because of a mere belief that such person has committed a misdemeanor. Hilla v. Jensen, 149 Minn. 58, 182 N. W. 902. The authority of a peace officer to arrest without warrant outside his jurisdiction is covered by § 629.40, subd. 1, which provides that:
*227“In any case wherein any sheriff, * * * constable, * * * may by law, either with or without a warrant, arrest any person for or upon a charge of any criminal offense committed within his jurisdiction, and the person to be arrested escapes from or is out of the county, city, town, or village, the officer may pursue and apprehend the person to be arrested anywhere in this state.” (Italics supplied.)
Based upon this court’s construction of § 629.34, as hereinbefore set forth, it is clear that under § 629.40, subd. 1, no authority is vested in a peace officer to arrest without warrant beyond the limits of his jurisdiction for a criminal offense committed within his jurisdiction unless a felony is involved (Ehrhardt v. Wells, Fargo & Co. 134 Minn. 58, 158 N. W. 721; State ex rel. Olson v. Leindecker, 91 Minn. 277, 97 N. W. 972), or unless the officer has witnessed the commission of or attempt to commit a misdemeanor within his jurisdiction and in “fresh pursuit” of the offender has passed beyond the limits of his jurisdiction to arrest the offender therefor.20 Hilla v. lensen, supra; see, Opinions Attorney General, No. 266-B-11, Dec. 18, 1941, and No. 785-B, Mar. 5, 1947, Sept. 12, 1952, and Sept. 4, 1957; 4 Am. Jur., Arrest, § 51.
In the instant case no felony is involved, and, accordingly, under §§ 629.34 and 629.40, subd. 1, plaintiff was not authorized to pursue defendant beyond the limits of St. Croix Beach and onto his property in St. Mary’s Point for the purpose of arresting him unless plaintiff had witnessed defendant’s commission of or attempt to commit a misdemeanor in the village of St. Croix Beach, and was in “fresh pursuit” *228of defendant to arrest him therefor.
But the evidence fails to establish that such a situation prevailed so as to justify plaintiff’s presence upon defendant’s property. Plaintiff conceded that defendant had not violated any law prior to the time that he left the stop sign to proceed to his home; that he then followed defendant, not because defendant had violated any law, but because he had observed a “tendency for carelessness,” not a “definite violation.” There is no ordinance that forbids an automobile driver from throwing dust, sand, gravel, and pebbles from the car wheels in turning a corner. There is nothing to establish that plaintiff had witnessed any acts of defendant that might be regarded as a public or criminal offense within the limits of St. Croix Beach. His testimony that his own speed approximated 45 to 50 miles per hour and was reduced to a “controllable speed” as he made turns at corners did not relate to St. Croix Beach. Further, he testified that, during his pursuit which covered about a mñe, he had gained upon defendant from the two blocks distance which separated them at the stop sign to a distance of but one-half block at defendant’s driveway. Certainly this is not adequate to support a finding that defendant had exceeded the lawful rates of speed within St. Croix Beach or had otherwise committed a misdemeanor therein.
That plaintiff did not seriously contend that defendant had exceeded the lawful speed limits within St. Croix Beach and was being pursued for that offense is indicated by the fact that his only comment to defendant when he first approached him in the latter’s driveway was that defendant had “violated the law” (although later he added to this statement that he had also said that defendant “was speeding”), and by the fact that the warrant signed by plaintiff charged only “careless driving.” As to the latter, no evidence was presented as to what constituted careless driving by defendant, or as to where within St. Croix Beach it had occurred. In my opinion such evidence falls far short of sustaining a finding that plaintiff had witnessed the commission of a criminal offense within the limits of St. Croix Beach and was in “fresh pursuit” of defendant therefor when he entered upon defendant’s premises.
It would follow therefore that plaintiff was not lawfully upon defend*229ant’s premises at the time he claims that defendant assaulted him. It is well settled that any unauthorized entry upon the premises of another is a trespass, 19 Dunnell, Dig. (3 ed.) § 9684, and that the owner of the premises may undertake reasonable force, if necessary, to terminate another’s unlawful intrusion thereon. He has the right to defend and protect his person and his property against aggression and if he reasonably believes that this can be done only by the immediate infliction of force upon the intruder, he may lawfully take such measure, provided the force used is reasonable and, in case of trespass to property, he has first requested the intruder to desist or withdraw. This right is recognized by laws of all civilized communities. 4 Am. Jur., Assault and Battery, § 61; Restatement, Torts, § 77.
M. S. A. 619.40 provides in part:
“The use, attempt, or offer to use force or violence upon or toward the person of another shall not be unlawful in the following cases:
$ ‡ ‡
“(3) When used by a party about to be injured * * * in preventing or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property lawfully in his possession, in case the force is not more than shall be necessary;” (Italics supplied.)
Under this statute and the principles cited, defendant had the right to demand that plaintiff leave his premises and to use reasonable force to terminate plaintiffs intrusion thereon; and to resist plaintiff’s attempt to take him into custody. The record establishes that, in taking such measures, he did not act maliciously or with more force than was reasonably necessary. Plaintiff admitted that at no time did defendant strike him; that the most defendant did was to grasp and push plaintiff against a building; that he sustained no physical injuries as a result; and that the only damage was the torn buttonholes on his shirt and the buttons removed therefrom. He weighed approximately 180 pounds and had formerly been trained as a boxer. Defendant felt compelled to call his brother for assistance and immediately withdrew from the scuffle and went into his house after his brother had appeared and separated the parties.
*230In my opinion plaintiff failed to sustain his burden of establishing that defendant was guilty of an unjustified assault and battery upon him. He was unlawfully upon defendant’s premises and defendant was within his rights in using reasonable force in seeking to terminate his presence thereon and in resisting his unlawful attempts to place him in custody. Accordingly, I believe that defendant’s motion for a directed verdict at the close of the testimony should have been granted.
I am further of the opinion that the verdict as reduced by the majority opinion herein is still far too excessive to be sustained, particularly since the record reveals that the publicity with attendant embarrassment which plaintiff claims he suffered as a result was for the most part due to plaintiff’s own activities and statements in the proceedings and in view of the further fact that he sustained no actual physical injuries whatever.
There is no claim that §§ 629.37, 629.38, and 629.39, authorizing arrests by private presons, were complied with or are here applicable. Section 629.37(1) provides that a private person may arrest another “For a public offense committed or attempted in his presence.” Section 629.38 provides that “Before making an arrest such private person shall inform the person to be arrested of the cause thereof and require him to submit, except when he is in the actual commission of the offense or when he shall be arrested on pursuit immediately after its commission.” Section 629.39 provides that “Every private person who shall have arrested another for the commission of a public offense shall, without unnecessary delay, take him before a magistrate or deliver him to a peace officer.”