Part 2 — CHAPTER VIII INTERFERENCE WITH ADVANTAGEOUS RELATIONS (continued 4)

The English law, which in its earlier stages began with but an imperfect line of demarcation between torts and breaches of contract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong; see Chasemore v. Richards, 7 H. L. C. 349, at p. 388. All personal wrong means the infringement of some personal right. “It is essential to an action in tort,” say the Privy Council in Rogers v. Rajendro Dutt, 13 Moore, P. C. 209, “that the act complained of should under the circumstances be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do a man harm in his interests, is not enough.” What, then, were the rights of the plaintiffs as traders as against the defendants? The plaintiffs had a right to be protected against certain kind of conduct; and we have to consider what conduct would pass this legal line or boundary. Now, intentionally to do that which is calculated in the ordinary course of events to damage, and 908which does, in fact, damage another in that other person’s property or trade, is actionable if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong (see Bromage v. Prosser; Capital and Counties Bank v. Henty, per Lord Blackburn, 7 App. Cas. 741, at p. 772). The acts of the defendants which are complained of here were intentional, and were also calculated, no doubt, to do the plaintiffs damage in their trade. But in order to see whether they were wrongful we have still to discuss the question whether they were done without any just cause or excuse. Such just cause or excuse the defendants on their side assert to be found in their own positive right (subject to certain limitations) to carry on their own trade freely in the mode and manner that best suits them, and which they think best calculated to secure their own advantage.

What, then, are the limitations which the law imposes on a trader in the conduct of his business as between himself and other traders? There seem to be no burdens or restrictions in law upon a trader which arise merely from the fact that he is a trader, and which are not equally laid on all other subjects of the Crown. His right to trade freely is a right which the law recognizes and encourages, but it is one which places him at no special disadvantage as compared with others. No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it. The intentional driving away of customers by show of violence, Tarleton v. M’Gawley, Peake, 205; the obstruction of actors on the stage by preconcerted hissing, Clifford v. Brandon, 2 Camp. 358, Gregory v. Brunswick, 13 L. J. C. P. 34; the disturbance of wild fowl in decoys by the firing of guns, Carrington v. Taylor, 11 East, 571, and Keeble v. Hickeringill, 11 East, 574 note; the impeding or threatening servants or workmen, Garret v. Taylor, Cro. Jac. 567; the inducing persons under personal contracts to break their contracts, Bowen v. Hall, Lumley v. Gye,—all are instances of such forbidden acts. But the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade. To the argument that a competition so pursued ceases to have a just cause or excuse when there is ill-will or a personal intention to harm, it is sufficient to reply (as I have already pointed out) that there was here no personal intention to do any other or greater harm to the plaintiffs than such as was necessarily involved in the desire to attract to the defendants’ ships the entire tea freights of the ports, a portion of which would otherwise have fallen to the plaintiffs’ share. I can find no authority for the doctrine that such a commercial motive deprives of “just cause 909or excuse” acts done in the course of trade which would but for such a motive be justifiable. So to hold would be to convert into an illegal motive the instinct of self-advancement and self-protection, which is the very incentive to all trade. To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract business to his own shop, would be a strange and impossible counsel of perfection. But we were told that competition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been “unfair.” This seems to assume that, apart from fraud, intimidation, molestation, or obstruction, of some other personal right in rem or in personam, there is some natural standard of “fairness” or “reasonableness” (to be determined by the internal consciousness of judges and juries) beyond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no sufficient reason, for such a proposition. It would impose a novel fetter upon trade. The defendants, we are told by the plaintiffs’ counsel, might lawfully lower rates provided they did not lower them beyond a “fair freight,” whatever that may mean. But where is it established that there is any such restriction upon commerce? And what is to be the definition of a “fair freight?” It is said that it ought to be a normal rate of freight, such as is reasonably remunerative to the shipowner. But over what period of time is the average of this reasonable remunerativeness to be calculated? All commercial men with capital are acquainted with the ordinary expedient of sowing one year a crop of apparently unfruitful prices, in order by driving competition away to reap a fuller harvest of profit in the future; and until the present argument at the bar it may be doubted whether shipowners or merchants were ever deemed to be bound by law to conform to some imaginary “normal” standard of freights or prices, or that law courts had a right to say to them in respect of their competitive tariffs, “Thus far shalt thou go, and no further.” To attempt to limit English competition in this way would probably be as hopeless an endeavor as the experiment of King Canute. But on ordinary principles of law no such fetter on freedom of trade can in my opinion be warranted. A man is bound not to use his property so as to infringe upon another’s right. Sic utere tuo ut alienum non lædas. If engaged in actions which may involve danger to others, he ought, speaking generally, to take reasonable care to avoid endangering them. But there is surely no doctrine of law which compels him to use his property in a way that judges and juries may consider reasonable: see Chasemore v. Richards, 7 H. L. C. 349. If there is no such fetter upon the use of property known to the English law, why should there be any such a fetter upon trade?

910It is urged, however, on the part of the plaintiffs, that even if the acts complained of would not be wrongful had they been committed by a single individual, they become actionable when they are the result of concerted action among several. In other words, the plaintiffs, it is contended, have been injured by an illegal conspiracy. Of the general proposition, that certain kinds of conduct not criminal in any one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one’s own just rights. In the application of this undoubted principle it is necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public; and it may be observed in passing that as a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy: see Skinner v. Gunton, 1 Wms. Saund. 229; Hutchins v. Hutchins, 7 Hill, 104. But what is the definition of an illegal combination? It is an agreement by one or more to do an unlawful act, or to do a lawful act by unlawful means: O’Connell v. The Queen, 11 Cl. & F. 155; Reg. v. Parnell, 14 Cox, Criminal Cases, 508; and the question to be solved is whether there has been any such agreement here. Have the defendants combined to do an unlawful act? Have they combined to do a lawful act by unlawful means? A moment’s consideration will be sufficient to show that this new inquiry only drives us back to the circle of definitions and legal propositions which I have already traversed in the previous part of this judgment. The unlawful act agreed to, if any, between the defendants must have been the intentional doing of some act to the detriment of the plaintiffs’ business without just cause or excuse. Whether there was any such justification or excuse for the defendants, is the old question over again, which, so far as regards an individual trader, has been already solved. The only differentia that can exist must arise, if at all, out of the fact that the acts done are the joint acts of several capitalists, and not of one capitalist only. The next point is whether the means adopted were unlawful. The means adopted were competition carried to a bitter end. Whether such means were unlawful is in like manner nothing but the old discussion which I have gone through, and which is now revived under a second head of inquiry, except so far as a combination of capitalists differentiates the case of acts jointly done by them from similar acts done by a single man of capital. But I find it impossible myself to acquiesce in the view that the English law places any such restriction on the combination of capital as would be involved in the recognition of such a distinction. If so, one rich capitalist may innocently carry competition to a length which would become unlawful in 911the case of a syndicate with a joint capital no larger than his own, and one individual merchant may lawfully do that which a firm or a partnership may not. What limits, on such a theory, would be imposed by law on the competitive action of a joint-stock company limited, is a problem which might well puzzle a casuist. The truth is, that the combination of capital for purposes of trade and competition is a very different thing from such a combination of several persons against one, with a view to harm him, as falls under the head of an indictable conspiracy. There is no just cause or excuse in the latter class of cases. There is such a just cause or excuse in the former. There are cases in which the very fact of a combination is evidence of a design to do that which is hurtful without just cause—is evidence—to use a technical expression—of malice. But it is perfectly legitimate, as it seems to me, to combine capital for all the mere purposes of trade for which capital may, apart from combination, be legitimately used in trade. To limit combinations of capital, when used for purposes of competition, in the manner proposed by the argument of the plaintiffs, would, in the present day, be impossible—would be only another method of attempting to set boundaries to the tides. Legal puzzles which might well distract a theorist may easily be conceived of imaginary conflicts between the selfishness of a group of individuals and the obvious well-being of other members of the community. Would it be an indictable conspiracy to agree to drink up all the water from a common spring in a time of drought; to buy up by preconcerted action all the provisions in a market or district in times of scarcity: see Rex v. Waddington, 1 East, 143; to combine to purchase all the shares of a company against a coming settling-day; or to agree to give away articles of trade gratis in order to withdraw custom from a trader? May two itinerant match-vendors combine to sell matches below their value in order by competition to drive a third match-vendor from the street? In cases like these, where the elements of intimidation, molestation, or the other kinds of illegality to which I have alluded are not present, the question must be decided by the application of the test I have indicated. Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question, Was it done with or without “just cause or excuse?” If it was bona fide done in the use of a man’s own property, in the exercise of a man’s own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable: see the summing-up of Erle, J., and the judgment of the Queen’s Bench in Reg. v. Rowlands, 17 Q. B. 671. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one’s own lawful gain, or the lawful enjoyment of one’s own rights. The good sense of the tribunal which had to decide would have to analyze the circumstances and to discover on which side of the line each case fell. But if the real object 912were to enjoy what was one’s own, or to acquire for one’s self some advantage in one’s property or trade, and what was done was done honestly, peaceably, and without any of the illegal acts above referred to, it could not, in my opinion, properly be said that it was done without just cause or excuse. One may with advantage borrow for the benefit of traders what was said by Erle, J., in Reg. v. Rowlands, 17 Q. B. 671, at p. 687, n., of workmen and of masters: “The intention of the law is at present to allow either of them to follow the dictates of their own will, with respect to their own actions, and their own property; and either, I believe, has a right to study to promote his own advantage, or to combine with others to promote their mutual advantage.”

Lastly, we are asked to hold the defendants’ Conference or association illegal, as being in restraint of trade. The term “illegal” here is a misleading one. Contracts, as they are called, in restraint of trade, are not, in my opinion, illegal in any sense, except that the law will not enforce them. It does not prohibit the making of such contracts; it merely declines, after they have been made, to recognize their validity. The law considers the disadvantage so imposed upon the contract a sufficient shelter to the public. The language of Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47, is, I think, not to be supported. No action at common law will lie or ever has lain against any individual or individuals for entering into a contract merely because it is in restraint of trade. Lord Eldon’s equity decision in Cousins v. Smith, 13 Ves. 542, is not very intelligible, even if it be not open to the somewhat personal criticism passed on it by Lord Campbell in his “Lives of the Chancellors.” If indeed it could be plainly proved that the mere formation of “conferences,” “trusts,” or “associations” such as these were always necessarily injurious to the public—a view which involves, perhaps, the disputable assumption that, in a country of free trade, and one which is not under the iron régime of statutory monopolies, such confederations can ever be really successful—and if the evil of them were not sufficiently dealt with by the common law rule, which held such agreements to be void as distinct from holding them to be criminal, there might be some reason for thinking that the common law ought to discover within its arsenal of sound commonsense principles some further remedy commensurate with the mischief. Neither of these assumptions are, to my mind, at all evident, nor is it the province of judges to mould and stretch the law of conspiracy in order to keep pace with the calculations of political economy. If peaceable and honest combinations of capital for purposes of trade competition are to be struck at, it must, I think, be by legislation, for I do not see that they are under the ban of the common law.

In the result, I agree with Lord Coleridge, C. J., and differ, with regret, from the Master of the Rolls. The substance of my view is this, that competition, however severe and egotistical, if unattended 913by circumstances of dishonesty, intimidation, molestation, or such illegalities as I have above referred to, gives rise to no cause of action at common law. I myself should deem it to be a misfortune if we were to attempt to prescribe to the business world how honest and peaceable trade was to be carried on in a case where no such illegal elements as I have mentioned exist, or were to adopt some standard of judicial “reasonableness,” or of “normal” prices, or “fair freights,” to which commercial adventurers, otherwise innocent, were bound to conform.

In my opinion, accordingly, this appeal ought to be dismissed with costs.

Appeal dismissed.^[581]

PASSAIC PRINT WORKS v. ELY & WALKER DRY GOODS COMPANY United States Circuit Court of Appeals, Eighth Circuit, November 14, 1900. Reported in 44 U. S. Circuit Court of Appeals Reports, 426, S. C. 105 Federal Reporter, 163.

In U. S. Circuit Court of Appeals, Eighth Circuit. Before Caldwell, Sanborn, and Thayer, Circuit Judges.^[582]

In error to U. S. Circuit Court for Eastern District of Missouri.

This case was determined below on a demurrer to the plaintiff’s petition, which was sustained; and a final judgment was entered against the Passaic Print Works, the plaintiff below, it having declined to plead further.

The plaintiff’s petition contained, in substance, the following allegations (inter alia):—

Plaintiff is a corporation engaged in the manufacture of prints or calicoes which it sells to jobbers or wholesale dealers in St. Louis and elsewhere, who in turn sell the same to the retail trade. In 1899 it had fixed on certain prices for certain specified brands of calicoes; and it had, prior to Feb. 25, 1899, received from several wholesale dealers in St. Louis orders for large amounts of said brands at the prices specified. On February 25, 1899, the defendant company, combining and conspiring among themselves and with others to the plaintiff unknown, and maliciously intending to injure the business of the said plaintiff, and to cause it great loss in money, and to break up and ruin the plaintiff’s trade among the jobbers in St. Louis, maliciously caused a circular, in the name of the said defendant corporation, to be issued and sent out to the retail trade tributary to St. Louis. In the circular defendant company offered for sale several brands of calicoes 914manufactured by plaintiff at prices lower than those fixed by plaintiff. The brands were offered “as long as they last” at these reduced prices: “Prices for all items subject to change without notice, and orders accepted only for stock on hand.” Plaintiff further alleged that it was informed and believed that defendant had but a small quantity of such goods to sell, and for that reason qualified its offer as above stated.

The petition further averred, that the effect of issuing this circular was to compel jobbers to whom plaintiff had already sold either to cancel their orders or to compel plaintiff to make a rebate on price, and to thereby break up the trade of plaintiff in St. Louis and the adjacent country, and to make the other jobbers in St. Louis afraid to deal in said brands except at greatly reduced prices and then in comparatively small quantities; and upon information and belief the plaintiff alleged “that the quotations of this plaintiff’s said goods in the said circular were made by the said defendants with the end and object in this paragraph stated, and not for any legitimate trade purpose.”

Thayer, Circuit Judge, [after stating the case] delivered the opinion of the court.

The complaint filed in the lower court, the substance of which has been stated, shows by necessary intendment that when the circular of the defendant company was issued it had in stock a limited quantity of the four brands of calico of the plaintiff’s manufacture which are therein described. The circular stated, in substance, that the defendant had such calicoes in stock, and the complaint did not deny that fact, but admitted it by averring that “the defendant corporation had but a small quantity of such goods to sell, and for that reason qualified its offer to sell by inserting in the circular after the name of the goods the words ‘as long as they last.’” Moreover, the owner of property, real or personal, has an undoubted right to sell it and to offer it for sale at whatever price he deems proper, although the effect of such offer may be to depreciate the market value of the commodity which he thus offers, and incidentally to occasion loss to third parties who have the same kind or species of property for sale. The right to offer property for sale, and to fix the price at which it may be bought, is incident to the ownership of property, and the loss which a third party sustains in consequence of the exercise of that right is damnum absque injuria. We are thus confronted with the inquiry whether the motive which influenced the defendant company to offer for sale such calicoes of the plaintiff’s manufacture as they had in stock at the price named in its circular, conceding such motive to have been as alleged in the complaint, changed the complexion of the act, and rendered the same unlawful, when, but for the motive of the actor, it would have been clearly lawful. It is common learning that a bad motive—such as an intent to hinder, delay, and defraud creditors, 915by virtue of St. 13 Eliz. c. 5, and possibly by the rules of the common law—will render a conveyance or transfer of property void which, but for the bad motive, would have been valid. So, also, one who sets the machinery of the law in motion without probable cause, and for the sole purpose of injuring the reputation of another, or subjecting him to loss and expense, is guilty of an unlawful act which would have been lawful but for the improper motive. And one who, by virtue of his situation, has a qualified privilege to make defamatory statements concerning another, may be deprived of the benefit of that privilege by proof that it was not exercised in good faith, but in pursuance of a malicious intent to injure the person concerning whom the defamatory statement or statements were made. Poll. Torts (Webb’s Ed.) pp. 331–335, and cases there cited. There is also some authority for saying that one who maliciously (that is, with intent to obtain some personal benefit at another’s loss or expense) induces another to break his contract with a third party thereby commits an actionable wrong if special damage is disclosed, although the act done would have been lawful if the wrongful motive had been absent. Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 Q. B. Div. 333; Walker v. Cronin, 107 Mass. 555. And see Poll. Torts (Webb’s Ed.) pp. 668–673. Aside from cases of the latter kind, it is a general rule that the bad motive which inspires an act will not change its complexion, and render it unlawful, if otherwise the act was done in the exercise of an undoubted right. Or, as has sometimes been said, “when an act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive.” The question as to how far and under what circumstances a bad purpose will render an act actionable which, considered by itself, and without reference to the purpose which prompted it, is lawful, has been so much discussed since the decision in Allen v. Flood, [1898] 1 App. Cas. 1, that it would be profitless to indulge in further comment. It has been well observed that it would be dangerous to the peace of society to admit the doctrine that any lawful act can be transformed prima facie into an actionable wrong by a simple allegation that the act was inspired by malice or ill will, or by an improper motive. It is wiser, therefore, to exclude any inquiry into the motives of men when their actions are lawful, except in those cases where it is well established that malice is an essential ingredient of the cause of action, or in those cases where, the act done being wrongful, proof of a bad motive will serve to exaggerate the damages.

The case at bar falls within neither of the exceptions to the general rule above stated,—that, if an act is done in the exercise of an undoubted right, and is lawful, the motive of the actor is immaterial. No one can dispute the right of the defendant company to offer for sale goods that it owned and were in its possession, whether the quantity was great or small, for such a price as it deemed proper. This was 916the outward visible act of which complaint is made, and, being lawful, the law will not hold it to be otherwise because of a secret purpose entertained by the defendant company to inflict loss on the plaintiff by compelling it to reduce the cost of a certain kind of its prints or calicoes.

Nor is the complaint aided in any respect by reference to the law of conspiracy, since the only object that the defendants had in view which the law will consider was the disposition or sale of certain goods which the defendant corporation had the right to sell; and the means employed to accomplish that end, namely, placing them on the market at a reduced cost, were also lawful.

In the brief filed in behalf of the plaintiff in error it is suggested finally that the complaint may be sustained on the ground that it states a good cause of action for maliciously causing certain persons to break or cancel their contracts with the plaintiff, but we think it quite obvious that the complaint was not framed with a view of stating a cause of action of that nature, and that it is insufficient for that purpose. It does not give the name of any person or corporation with whom the plaintiff had a contract for the sale of its prints which was subsequently broken in consequence of the wrongful acts of the defendant. Neither does it show that it had accepted any orders for goods which the jobber was not privileged to cancel at his pleasure. Nor does it allege any special damage incident to the breach of any particular contract. In view of all the allegations which the complaint contains it is manifest, we think, that it was framed with a view of recovering on the broad ground that the issuance of the circular was unlawful and actionable, provided the motive of the defendant company in issuing it was to occasion loss or inconvenience to the plaintiff.

We are of opinion that the complaint did not state a cause of action, as the trial court held, and the judgment below is therefore affirmed.

Sanborn, Circuit Judge (dissenting). I cannot concur in the opinion of the majority in this case because the petition alleges that the defendants by their advertisement of the goods manufactured by plaintiff, without any legitimate trade purpose, prevented jobbers from purchasing goods of the plaintiff, and caused those who had agreed to purchase from it to cancel their orders unless the plaintiff would make them a rebate, so that the plaintiff sustained damage in the sum of $19,000. In my opinion, the gravamen of this cause of action is not the malicious intent or purpose of the defendants, but it is their wrongful act of interfering with the plaintiff’s business, of preventing sales that it would have made, and of causing the cancellation of orders to, or contracts of purchase from, the plaintiff already made. This act, without any allegation or averment of intent or purpose, was itself wrongful, unless it was done for a justifiable purpose. The act of interfering with and injuring the trade or business of the plaintiff without 917justifiable cause entitled the plaintiff to damages. It is conceded that, if the defendants had advertised these prints for any legitimate trade purpose, for the purpose of selling them for gain for themselves, for the purpose of converting them into money because they preferred their advertised price to the goods, or for the purpose of competing in trade with the plaintiff, they would have had a justifiable cause for inflicting upon it the damages of which it complains, and these damages would then have been damnum absque injuria. But, if they had advertised them for any of these purposes, this case would have constituted an exception to the general rule of law. The general rule is that whenever one injures a man’s business, profession, or occupation he is liable for the damages he inflicts. The exception is that, where the injury is caused by competition in trade or the lawful exercise of a right which the inflictor has, then the injury is justifiable, and no damages can be recovered. But, where such an injury is inflicted, the presumption always is that the rule, and not the exception, applies, and, if the inflictor would justify, he must show that he falls within the exception. The question in this case, therefore, is not whether or not the motive or intent of the defendants will make acts unlawful which were otherwise lawful, but whether or not the intent and purpose of the defendants will justify an otherwise unlawful act, and excuse them from the payment of damages for which, under the general rule of law, they are liable to the plaintiff. It is whether or not the petition shows that they advertised the goods for legitimate trade purposes, so that their acts fell within the exception, which justifies the infliction of damages, and not under the general rule, which requires them to compensate the plaintiff for the injury they have caused. The opinion of the majority assumes that the defendants advertised the prints for a legitimate trade purpose, so that their acts fell within the exception to the general rule. It overlooks the legal presumption that injury to one’s business entitles him to compensatory damages, and the plain averment of the petition that the acts of the defendants were not done for any justifiable cause, but were committed for the sole purpose of inflicting upon the plaintiff the injury they caused.

[After quoting from the averments in the petition.]

Now, no one will dispute the rules of law that the plaintiff in this action had the right to conduct its business of manufacturing and selling prints without the injurious interference of strangers, and that the defendants were subject to the universal rule that they must so use their own property and rights as to inflict no unnecessary injury upon their neighbors. The averments of this petition are that they were not using any of their property or exercising any of their rights for any legitimate trade purpose, but that they were using them for the express purpose of inflicting injury upon the plaintiff, and that they succeeded in imposing the infliction. These allegations seem to 918me to bring this case under the general rule of law, and to clearly negative the claim that it falls within the exception. They seem to state a good cause of action.

[The learned Judge here cited, and quoted from, various authorities.]

The proposition is sustained by respectable authority; it is just, and I believe it is sound,—that an action will lie for depriving a man of custom (that is, of possible contracts), when the result is effected by persuasion as well as when it is accomplished by fraud or force, if the harm is inflicted without justifiable cause, such as competition in trade. Walker v. Cronin, 107 Mass. 555, 565; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74, 8 L. R. A. 524; Hartnett v. Association, 169 Mass. 229, 235, 47 N. E. 1002, 38 L. R. A. 194; Delz v. Winfree, 80 Tex. 400, 405, 16 S. W. 111; Doremus v. Hennessy, 62 Ill. App. 391, 403; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485; Temperton v. Russell, 62 Law J. (Q. B. Div. 1893) 412, 419.

Under the legal principles to which reference has been made, and under the authorities which have been cited, the petition in this case states a good cause of action for interference with and injury to the business of the plaintiff by preventing it from obtaining custom it would otherwise have obtained, without any justifiable cause or excuse, and for this reason the demurrer should have been overruled, and the case sent to trial.

There is another reason why the judgment below should be reversed. It is that the petition sufficiently states a cause of action for maliciously interfering with contracts between jobbers in St. Louis and the plaintiff, and inducing the former to break their contracts to the injury of the latter.

For the reasons which have now been briefly stated, the judgment below should, in my opinion, be reversed, and the defendants should be required to answer the petition.^[583]

TUTTLE v. BUCK Supreme Court, Minnesota, February 19, 1909. Reported in 107 Minnesota Reports, 145.

Action in the District Court for Wright County to recover $10,000 damages. Defendant demurred to the complaint on the ground it did not state a cause of action. From an order, Buckham, J., overruling the demurrer, defendant appealed. Affirmed.

This appeal was from an order overruling a general demurrer to a complaint in which the plaintiff alleged:—

919That for more than ten years last past he has been and still is a barber by trade, and engaged in business as such in the village of Howard Lake, Minnesota, where he resides, owning and operating a shop for the purpose of his said trade. That until the injury hereinafter complained of his said business was prosperous, and plaintiff was enabled thereby to comfortably maintain himself and family out of the income and profits thereof, and also to save a considerable sum per annum, to wit, about $800. That the defendant, during the period of about twelve months last past, has wrongfully, unlawfully, and maliciously endeavored to destroy plaintiff’s said business, and compel plaintiff to abandon the same. That to that end he has persistently and systematically sought, by false and malicious reports and accusations of and concerning the plaintiff, by personally soliciting and urging plaintiff’s patrons no longer to employ plaintiff, by threats of his personal displeasure, and by various other unlawful means and devices, to induce, and has thereby induced, many of said patrons to withhold from plaintiff the employment by them formerly given. That defendant is possessed of large means, and is engaged in the business of a banker in said village of Howard Lake, at Dassel, Minnesota, and at divers other places, and is nowise interested in the occupation of a barber; yet in the pursuance of the wicked, malicious, and unlawful purpose aforesaid, and for the sole and only purpose of injuring the trade of the plaintiff, and of accomplishing his purpose and threats of ruining the plaintiff’s said business and driving him out of said village, the defendant fitted up and furnished a barber shop in said village for conducting the trade of barbering. That failing to induce any barber to occupy said shop on his own account, though offered at nominal rental, said defendant, with the wrongful and malicious purpose aforesaid, and not otherwise, has during the time herein stated hired two barbers in succession for a stated salary, paid by him, to occupy said shop, and to serve so many of plaintiff’s patrons as said defendant has been or may be able by the means aforesaid to direct from plaintiff’s shop. That at the present time a barber so employed and paid by the defendant is occupying and nominally conducting the shop thus fitted and furnished by the defendant, without paying any rent therefor, and under an agreement with defendant whereby the income of said shop is required to be paid to defendant, and is so paid in partial return for his wages. That all of said things were and are done by defendant with the sole design of injuring the plaintiff, and of destroying his said business, and not for the purpose of serving any legitimate interest of his own. That by reason of the great wealth and prominence of the defendant, and the personal and financial influence consequent thereon, he has by the means aforesaid, and through other unlawful means and devices by him employed, materially injured the business of the plaintiff, has largely reduced the income and profits 920thereof, and intends and threatens to destroy the same altogether, to plaintiff’s damage in the sum of $10,000.^[584]

Elliott, J. (after stating the facts as above).

In has been said that the law deals only with externals, and that a lawful act cannot be made the foundation of an action because it was done with an evil motive. In Allen v. Flood, [1898] A. C. 1, 151, Lord Watson said that, except with regard to crimes, the law does not take into account motives as constituting an element of civil wrong. In Mayor v. Pickles, [1895] A. C. 587, Lord Halsbury stated that if the act was lawful, “however ill the motive might be, he had a right to do it.” In Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. 882, the court said that, “when one exercises a legal right only, the motive which actuates him is immaterial.” In Jenkins v. Fowler, 24 Pa. St. 308, Mr. Justice Black said that “malicious motives make a bad act worse, but they cannot make that wrong which, in its own essence, is lawful.” This language was quoted in Bohn Mnfg. Co. v. Hollis, 54 Minn. 223, 233, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and in substance in Ertz v. Produce Exchange, 79 Minn. 140, 143, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley, Torts (3d Ed.) 1505; Auburn v. Douglass, 9 N. Y. 444.

Such generalizations are of little value in determining concrete cases. They may state the truth, but not the whole truth. Each word and phrase used therein may require definition and limitation. Thus, before we can apply Judge Black’s language to a particular case, we must determine what act is “in its own essence lawful.” What did Lord Halsbury mean by the words “lawful act”? What is meant by “exercising a legal right”? It is not at all correct to say that the motive with which an act is done is always immaterial, providing the act itself is not unlawful. Numerous illustrations of the contrary will be found in the civil as well as the criminal law.

We do not intend to enter upon an elaborate discussion of the subject, or become entangled in the subtleties connected with the words “malice” and “malicious.” We are not able to accept without limitations the doctrine above referred to, but at this time content ourselves with a brief reference to some general principles.

It must be remembered that the common law is the result of growth, and that its development has been determined by the social needs of the community which it governs. It is the resultant of conflicting social forces, and those forces which are for the time dominant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protection, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt itself to changed 921conditions. Necessarily its form and substance have been greatly affected by prevalent economic theories.

For generations there has been a practical agreement upon the proposition that competition in trade and business is desirable, and this idea has found expression in the decisions of the courts as well as in statutes. But it has led to grievous and manifold wrongs to individuals, and many courts have manifested an earnest desire to protect the individual from the evils which result from unrestrained business competition. The problem has been to so adjust matters as to preserve the principle of competition and yet guard against its abuse to the unnecessary injury to the individual. So the principle that a man may use his own property according to his own needs and desires, while true in the abstract, is subject to many limitations in the concrete. Men cannot always, in civilized society, be allowed to use their own property as their interests or desires may dictate without reference to the fact that they have neighbors whose rights are as sacred as their own. The existence and well-being of society require that each and every person shall conduct himself consistently with the fact that he is a social and reasonable person. The purpose for which a man is using his own property may thus sometimes determine his rights; and applications of this idea are found in Stillwater Water Co. v. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 541, Id., 92 Minn. 230, 99 N. W. 882, and Barclay v. Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. 365.

Many of the restrictions which should be recognized and enforced result from a tacit recognition of principles which are not often stated in the decisions in express terms. Sir Frederick Pollock notes that not many years ago it was difficult to find any definite authority for stating as a general proposition of English law that it is wrong to do a wilful wrong to one’s neighbor without lawful justification or excuse. But neither is there any express authority for the general proposition that men must perform their contracts. Both principles, in this generality of form and conception, are modern, and there was a time when neither was true. After developing the idea that law begins, not with authentic general principles, but with the enumeration of particular remedies, the learned writer continues: “If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned, namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others, are all alike of a comprehensive nature.” Pollock, Torts (8th Ed.), p. 21. He then quotes with approval the statement of Lord Bowen that “at common law there was a cause of action whenever one person did damage to another, wilfully and intentionally, without just cause or excuse.”

922In Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. 330, Mr. Justice Hammond said: “It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first head-note in Allen v. Flood, as reported in [1898] A. C. 1, as follows: ‘An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action.’ If the meaning of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate.”

Similar language was used by Mr. Justice Wells in Walker v. Cronin, 107 Mass. 555; by Lord Coleridge in Mogul Steamship Co. v. McGregor, 21 Q. B. Div. 544–553; by Lord Justice Bowen in the same case, 23 Q. B. Div. 593; by Mr. Justice Holmes in Aikens v. Wisconsin, 195 U. S. 194, 204, 25 Sup. Ct. 3, 49 L. Ed. 154; by Chief Justice McSherry, in Klingel v. Sharp, 104 Md. 233, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 Am. St. 399; and by Judge Sanborn in his dissenting opinion in Passaic Print Works v. Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426, 62 L. R. A. 673. Numerous cases will be found referred to in the note to this case in 62 L. R. A. 673, and in an article in 18 Harvard Law Rev. 411.

It is freely conceded that there are many decisions contrary to this view; but, when carried to the extent contended for by the appellant, we think they are unsafe, unsound, and illy adapted to modern conditions. To divert to one’s self the customers of a business rival by the offer of goods at lower prices is in general a legitimate mode of serving one’s own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to himself, and for the sole purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort. In such a case he would not be exercising his legal right, or doing an act which can be judged separately from the motive which actuated him. To call such conduct competition is a perversion of terms. It is simply the application of force without legal justification, which in its moral quality may be no better than highway robbery.

Nevertheless, in the opinion of the writer this complaint is insufficient. It is not claimed that it states a cause of action for slander. No question of conspiracy or combination is involved. Stripped of 923the adjectives and the statement that what was done was for the sole purpose of injuring the plaintiff, and not for the purpose of serving a legitimate purpose of the defendant, the complaint states facts which in themselves amount only to an ordinary every day business transaction. There is no allegation that the defendant was intentionally running the business at a financial loss to himself, or that after driving the plaintiff out of business the defendant closed up or intended to close up his shop. From all that appears from the complaint he may have opened the barber shop, energetically sought business from his acquaintances and the customers of the plaintiff, and as a result of his enterprise and command of capital obtained it, with the result that the plaintiff, from want of capital, acquaintance, or enterprise, was unable to stand the competition and was thus driven out of business. The facts thus alleged do not, in my opinion, in themselves, without reference to the way in which they are characterized by the pleader, tend to show a malicious and wanton wrong to the plaintiff.

A majority of the justices, however, are of the opinion that, on the principle declared in the foregoing opinion, the complaint states a cause of action, and the order is therefore affirmed.

Affirmed.

Jaggard, J., dissents.^[585]

Weaver, J., in DUNSHEE v. STANDARD OIL COMPANY (1911) 152 Iowa Reports, 618.

As we understand appellants’ contention, it is that their conduct did not transgress the bounds of legitimate competition, and that so long as they kept within this limitation the question of the alleged malice or motive inspiring their acts is wholly immaterial. Cases involving the question thus suggested have frequently arisen, both in this country and in England, and there is much in harmony in the expressions of judicial opinion thereon. Many authorities may be found holding without apparent qualification or exception, that the law takes no account whatever of motives as constituting an element of civil wrong. In other words, if a man do a thing which is otherwise lawful, the fact that he does it maliciously and for the express purpose of injuring his neighbor affords the latter no remedy at law. Such is the net effect of Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Jenkins v. Fowler, 24 Pa. 308, and others of that class. If this be the correct view of the law, a man may excavate the earth near the boundary of his own land for the mere purpose of seeing the foundation of the house of his neighbor slide into the pit thus prepared for it; he may dig through his 924own soil to the subterranean sources of his neighbor’s spring or well and divert the water into a ditch, where it will serve no purpose of use or profit to himself or any one else; if a banker or merchant, he may punish the blacksmith who refuses to patronize him by temporarily establishing a shop on the next lot and hiring men to shoe horses without money and without price, until he has driven the offending smith to come to his terms or to go out of business; and if a farmer, dependent upon a subterranean supply of water for the irrigation of his soil or watering of his live stock, he may contrive to ruin his competing neighbor by wasting the surplus not reasonably required for his own use. The laws of competition in business are harsh enough at best; but if the rule here suggested were to be carried to its logical and seemingly unavoidable extreme there is no practical limit to the wrongs which may be justified upon the theory that “it is business.” Fortunately, we think, there has for many years been a distinct and growing tendency of the courts to look beneath the letter of the law and give some effect to its beneficent spirit, thereby preventing the perversion of the rules intended for the protection of human rights into engines of oppression and wrong. It is doubtless true that under many circumstances an act is legally right and defensible without regard to the motive which induces or characterizes it; but there is abundance of authority for saying that this is by no means the universal rule, and that an act which is legally right when done without malice may become legally wrong when done maliciously, wantonly, or without reasonable cause. In Panton v. Holland, 17 Johns. (N. Y.) 92, 8 Am. Dec. 369, it is stated as a general rule that, “In the exercise of a lawful right, a party may become liable to an action where it appears that the act was done maliciously.” See also, Greenleaf v. Francis, 18 Pick. (Mass.) 117; Chesley v. King, 74 Me. 164, 43 Am. Rep. 569; Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510; Sankey v. St. Marys, 8 Mont. 265, 21 Pac. 23; Harbison v. White, 46 Conn. 106; Stillwater v. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. Rep. 541; Ohio Oil Company v. Indiana, 150 Ind. 698, 50 N. E. 1124; Barclay v. Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365. The same principle has been frequently applied in the decision of trade and labor controversies, though not without other instances in which it has been repudiated. See People v. Petheram, 64 Mich. 252, 31 N. W. 188; Walker v. Cronin, 107 Mass. 555; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184; Hawarden v. Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R. A. 828; Graham v. Railroad Co., 47 La. Ann. 214, 16 South. 806, 27 L. R. A. 416, 49 Am. St. Rep. 366; Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Barr v. Council, 53 N. J. Eq. 101, 30 Atl. 881; Toledo, &c. Ry. Co. v. Penn. Co., (C. C.) 54 Fed. 730, 19 L. R. A. 387; Stevens v. Kelly, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; Purington v. Hinchcliffe, 219 Ill. 159, 76 N. E. 47, 2 L. R. A. (N. S.) 824, 109 Am. St. Rep. 322. In the Van Horn Case, supra, the court says: “While a trader may engage in the sharpest competition with those in like business by holding out extraordinary inducements, ... yet, when he oversteps that line and commits an act with the malicious intent of inflicting injury upon his rival’s business, his conduct is illegal, and if damage results from it the injured party is entitled to redress. Nor does it matter whether the wrong-doer effects his object by persuasion or by false representation. The court looks through the instrumentality 925or means used to the wrong perpetrated with the malicious intent and bases the right of action on that.” Quoting this language in Barr v. Council, supra, the same court adds: “The right of action depends, then, not so much upon the nature of the act, as upon the intent with which it is done, always assuming that injury has attended the doing of it.” In Parkinson v. Council, 154 Cal. 581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550, the court, while reaching the opposite conclusion generally, concedes it to be the law that: “Any injury to a lawful business, whether the result of conspiracy or not, is prima facie actionable, but may be defended on the ground that it was merely a lawful effort of the defendants to promote their own welfare. To defeat this plea of justification, the plaintiff may offer evidence that the acts of the defendants were inspired by express malice, and were done for the purpose of injuring the plaintiff, and not to benefit themselves.”

Dealing with the perplexities arising in the effort to sustain, on the one hand, the widest practicable liberty of men to engage in any and every line of business, and, on the other, to protect the business of each from wrongful encroachment or interference by others, the New Hampshire court after reference to many of the decided cases, has lately said: “The more recent authorities reason that, as the right to deal or not to deal with others is inherent in the idea of Anglo-Saxon liberty, prima facie a man may demand an open market, and, since this is so, one who interferes with this open market must justify his acts, or respond in damages. Thus far these authorities are uniform, but when they proceed to the determination of what amounts to a justification they differ widely. The cause is not far to seek. The rule they apply is that of reasonable conduct; yet they decide each case as though it involved only a question of law. In reality, the issue is largely one of fact, and the result is what would be expected. Judges are men, and their decisions upon complex facts must vary as those of juries might on the same facts. Calling one determination an opinion and the other a verdict does not alter human nature, nor make that uniform and certain which from its nature must remain variable and uncertain. While these cases go too far in what they decide as questions of law, yet the test they constantly declare they are applying is the true one. The standard is reasonable conduct under all the circumstances of the case.” Huskie v. Griffin, 75 N. H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) 966. See, also, Doremus v. Hennesy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203; Horan v. Burns, 72 N. H. 93, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670; Ertz v. Produce Exchange, 79 Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433. As suggested in the foregoing quotation, no definition or standard of reasonable cause can be stated which will insure absolute uniformity or even consistency in the decision of such cases, because the issue presented is in its essence one of fact, and the same facts and circumstances will not always appeal with like effect to the minds of all jurors or of all judges. It is for this reason that, save in those exceptional cases where the case of the plaintiff or the defendant is so clear and undisputable that all fair-minded persons are forced to the same conclusion, controversies of this nature, in a trial at law, are for the jury, and not for the court.

Coming to the case in hand, we may concede to the appellants the undoubted right to establish a retail oil business in Des Moines, to employ agents and drivers, and send them out over the same routes and make sales to the same people with whom the Crystal Oil Company was dealing; but in so doing it was bound to conduct such business with reasonable regard and consideration 926for the equal right of the Crystal Company to continue supplying oil to such of its customers as desired to remain with it. If, however, there was no real purpose or desire to establish a competing business, but, under the guise or pretence of competition, to accomplish a malicious purpose to ruin the Crystal Company or drive it out of business, intending themselves to retire therefrom when their end had been secured, then they can claim no immunity under the rules of law which recognize and protect competition between dealers in the same line of business seeking in good faith the patronage of the same people. And if, under such pretence of competition, defendants maliciously interfered with the business of the Crystal Oil Company, in the manner charged, and injury to the latter was thereby inflicted, a right of action exists for the recovery of damages. It may be conceded that authorities are not wanting to sustain the position that, even though the Standard Oil Company had no intention of becoming a retail dealer in oil in Des Moines, but entered the business of selling oil in this manner temporarily, for the sole purpose of driving the Crystal Company out, it is a matter into which the courts will not inquire; but we think such precedents are out of harmony with fundamental principles of justice, which, as we have said, underlie the law, as well as out of harmony with the later and better-considered cases. True the Standard Company, as a wholesale dealer, would violate no law in offering its product for sale at retail at half price in the territory supplied by the Crystal Company, but such fact, if proven, would have a distinct bearing upon the reasonableness of its methods employed in diverting trade from said company, as well as upon the charge that in interfering between the Crystal Company and its customers the Standard Company was actuated by malice or spirit of wanton assault upon the business of another, who had given it offence.^[586]

KUZNIAK v. KOZMINSKI Supreme Court, Michigan, December 17, 1895. Reported in 107 Michigan Reports, 444.

Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to abate an alleged nuisance. From a decree for complainant, defendants appeal. Reversed.

Long, J. The parties to this cause own adjoining lots in the city of Grand Rapids. Defendants’ lot is on the southeasterly corner of Eleventh and Muskegon streets, and upon which is a large tenement house facing both streets. The complainant owns the lot immediately south and adjoining the defendants’, and upon which he has a dwelling house facing Muskegon street, and also a tenement house about 60 feet back from Muskegon street, and within 22 inches of the north line, being the line of defendants’ lot. At the time this tenement house was erected, defendants had upon their lot what was called a “chicken shed”; and, after complainant’s tenement house was 927erected, defendants moved this chicken shed upon a part of their lot directly opposite complainant’s tenement house, and within 24 inches of the lot line, and converted it into a coal and wood house for the use of their tenants, who occupied the dwelling on said lot. This bill was filed by complainant for the purpose of having this coal and wood house of defendants declared a nuisance, and to compel them to remove the same. The claim made by the bill is that the defendants removed the building to that place through spite and from a malicious motive, and not because it was needed for any useful purpose. Defendants answered the bill, denying that they were actuated by malice in putting the building there, and averred that it was so placed for the use of their tenants for wood and coal. The testimony was taken in open court, and the court found that the building was a nuisance, and a decree was entered directing the defendants to remove the building within 60 days from the date of the decree, and that, in default of such removal, the sheriff of the county remove the same, at the cost and expense of defendants. The complainant was awarded the costs of the suit. Defendants appeal.

It was held in Flaherty v. Moran, 81 Mich. 52, that a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor’s window, was a nuisance, and the decree of the court below ordering its removal was affirmed; but that decision was placed on the ground that the fence served no useful purpose, and was erected solely from a malicious motive. In the present case the building erected by the defendants was for a useful purpose; and, while there may have been some malice displayed in putting it so near the complainant’s house as to shut off some of the light, that would not be a sufficient reason upon which to found a right in complainant to have the building removed. Defendants had a right to erect a building upon their own premises, and the decisions have been quite uniform to the effect that the motives of a party in doing a legal act cannot form the basis upon which to found a remedy. In Allen v. Kinyon, 41 Mich. 282, it was held that the motive is of no consequence when the party does not violate the rights of another. In Hawkins v. Sanders, 45 Mich. 491, it was held that there was no right of prospect which would prevent the erection of an awning on a neighboring lot. The case does not fall within the rule of Flaherty v. Moran, supra, and the court below was in error in directing the removal of the building. That decree must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts to the defendants.

The other Justices concurred.^[587]

928

HORAN v. BYRNES Supreme Court, New Hampshire, April 7, 1903. Reported in 72 New Hampshire Reports, 93.

Case, under sections 28 and 29, chapter 143, Public Statutes, for maintaining a structure in the nature of a fence, in violation of the statute.

Upon the trial, defendant moved for a nonsuit, on the ground that the statute is unconstitutional. The motion was denied, and defendant excepted.

929Verdict for the plaintiff.^[588]

Parsons, C. J. “Any fence or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.

“Any owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance, may have an action of tort for the damage sustained thereby.

“If the plaintiff recovers judgment in the action, the defendant shall cause the removal of the nuisance within thirty days from the date of the judgment, and for each day he shall permit the nuisance to remain after the expiration of said thirty days he shall incur a penalty of ten dollars for the use of the party injured.” P. S. c. 143, ss. 28, 29, 30.

The act forbids the use by one landowner of his land for the unnecessary erection of a fence exceeding five feet in height, when the purpose of such unnecessary height is the annoyance of the adjoining owner or occupant, if such unnecessary height injures the adjoining owner in his comfort or the enjoyment of his estate. The claim of the defendant in support of his motion for a nonsuit, that the statute is unconstitutional, raises the question whether the statutory prohibition is an interference with the defendant’s “natural, essential, and inherent” right of “acquiring, possessing, and protecting property,” or deprives him of that protection in its enjoyment, which is the right of “every member of the community.” Bill of Rights, arts. 2, 12.

The constitutional objection made to the present statute raises the question, if it appears that the statute is an interference with the defendant’s property right, whether the interference is or not one which the legislature might properly make as a regulation of the use of property. The constitutionality of similar statutes has been upheld upon the latter ground, as being merely a small limitation of existing rights incident to property, which under the police power may be imposed 930for the sake of preventing a manifest evil. “It is hard,” it has been said, “to imagine a more insignificant curtailment of the rights of property.” Rideout v. Knox, 148 Mass. 368, 372, 373; Karasek v. Peier, 22 Wash. 419; Western &c. Co. v. Knickerbocker, 103 Cal. 111. Similar statutes in Maine, Vermont, and Connecticut have been before the courts, but it has not been suggested that the power of the legislature to adopt them has been attacked in those states. Lord v. Langdon, 91 Me. 221; Harbison v. White, 46 Conn. 106; Gallagher v. Dodge, 48 Conn. 387, 40 L. R. A. 181–183, note.

The present statute was passed in 1887. Laws 1887, c. 91. In Hunt v. Coggin, 66 N. H. 140, the verdict was for the defendant; and in Horan v. Byrnes, 70 N. H. 531, the defendant waived any objection to the statute upon this ground. In Lovell v. Noyes, 69 N. H. 263, the question was whether a building was within the terms of the statute. The constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present are within the constitutional exercise of the police power, involving for the general good some slight limitation of existing property rights, that if one incident of the property right in real estate is the right to use it maliciously for the sole purpose of injuring another, it is as much an invasion of the right to take it from a small portion as from the whole of one’s property; and that the matter in question concerns private individuals and not the public in general, and hence does not come within the police power. State v. White, 64 N. H. 48, 50. It may be thought these objections are successfully answered in the cases cited, or that, if not there answered, a satisfactory answer can be found. But a discussion of these objections does not reach the fundamental question in the case.

“The statute was designed to prevent an act the sole effect of which would be to annoy or injure another.” Lovell v. Noyes, 69 N. H. 263. The primary question, therefore, is whether one’s right to use property solely to injure another is a part of his property right in real estate, which is so protected by the constitution that the prohibition of such use is not within the general power of legislation “for the benefit and welfare of this state and for the governing and ordering thereof.” Const. art. 5. Upon the question whether a fence on or near the division line between adjoining landowners, maliciously built to an unreasonable height for the sole purpose of annoying and injuring the adjoining owner or occupant, is a nuisance which can in the absence of statutory authority be abated by an injunction, the courts are in conflict. Letts v. Kessler, 54 Ohio St. 73, answers the question in the negative, while an opposite conclusion is reached in Michigan. Burke v. Smith, 69 Mich. 380; Flaherty v. Moran, 81 Mich. 52; Kirkwood v. Finegan, 95 Mich. 543. In Rideout v. Knox, 148 Mass. 368, and Karasek v. Peier, 22 Wash. 419, cases in which the power of 931the legislature to enact a statute similar to that under consideration is attacked and upheld, it is conceded “that to a large extent the power to use one’s property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation.” Rideout v. Knox, supra, 372.

The conclusion that a landowner’s property right in real estate includes the right to use it solely for the injury and annoyance of his neighbor, without intending to subserve any useful purpose of his own, is “based upon a narrow view of the effect of the land titles,” and is reached “by the strict enforcement of a technical rule of ownership briefly expressed in an ancient maxim,” cujus est solum, ejus est usque ad coelum. The courts of this state have had in some respects, at least, a different understanding of the elements of land-ownership. As to the use of land in the control of surface water, the enjoyment of water percolating beneath the surface, and the use generally that may be rightfully made of real estate by the owner or occupant, the test has been considered to be not merely whether the act was an exercise of dominion on the land regardless of the injury to other land, but the reasonableness of the use under all the circumstances, including the necessity and advantage to one and the unavoidable injury to the other. Franklin v. Durgee, 71 N. H. 186; Ladd v. Brick Co., 68 N. H. 185; Swett v. Cutts, 50 N. H. 439; Bassett v. Company, 43 N. H. 569, 577. It has been said that the rule of absolute dominion is easier of application. Chase v. Silverstone, 62 Me. 175, 183. This view, however, does not seem to be upheld by the difficulties met in its application in reference to surface waters. See Franklin v. Durgee, 71 N. H. 186, 189. But however that may be, difficulty in administration is not a sufficient reason for the denial of justice. Cases like Chatfield v. Wilson, 28 Vt. 49, and Phelps v. Nowlen, 72 N. Y. 39, in which the principle of the maxim relied upon is applied to waters in the soil, are not authority here, where a contrary view is entertained. Franklin v. Durgee and Bassett v. Company, supra.

Aside from the authorities in cases in which the control of waters was in question, the leading case appears to be Mahan v. Brown, 13 Wend. 261. Here, although the plaintiff alleged that the fence complained of was erected solely to injure her, the decision is upon the ground that by the erection of the fence the plaintiff is deprived of no right, but is merely prevented from acquiring a right. If by enjoyment of light and air across his neighbor’s land for the prescriptive period a landowner could acquire a right to such enjoyment, the building of a fence as an assertion of a contrary right and to prevent the acquiring of such easement would be a building for a necessary and useful purpose, and not for the sole purpose of annoying another. The case standing upon a view of the effect of non-user of a right to build, now generally abandoned in this country (Wash. Ease. 490, 932497, 498), is not of value in the present discussion. The argument generally is, that the motive with which one does an act otherwise lawful is immaterial; and hence, as it must be conceded that a landowner has the right to build on his land as he conceives may best subserve his interests, the act lawful for a useful purpose is not made unlawful and a nuisance merely by the intent accompanying it.

Whether the first proposition is entirely true may perhaps be doubted. Cases cited to support the proposition (Walker v. Cronin, 107 Mass. 555; Phelps v. Nowlen, 72 N. Y. 39) do not support it in its entirety. See Chesley v. King, 74 Me. 164. In Houston v. Laffee, 46 N. H. 505, which was trespass for cutting an aqueduct pipe maintained by the plaintiff upon the defendant’s land by a parol license, it was held that if the cutting of the pipe was done simply for the purpose of putting an end to the license, and without any malice or intentional wrong, the defendant would not be liable; but if the pipe was cut “wantonly, unnecessarily, maliciously, and with a view ... to injure the plaintiff,” the defendant would be liable. It is true that an act which one has the right to do under all circumstances, like the bringing of a suit upon a valid claim (Friel v. Plumer, 69 N. H. 498), cannot be made actionable by the motive which accompanies it. But as applied to the use of real estate the argument begs the question which is whether the enjoyment of real estate includes the right to use it solely to injure another. Because when employed for a useful purpose such use may rightfully injure another, it does not follow that the same use for a wrongful purpose may also rightfully injure another, except upon the theory of absolute dominion, for the character of the use is an element of the right.

“As a general proposition, it is safe to say that the owner of land has a right to make a reasonable use of his property; and that right extends as well to an unlimited distance above the earth’s surface as to an unlimited distance below. He may not only dig for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases into the air, subject all the time, of course, to a proper application of the doctrine contained in the maxim, sic utere tuo ut alienum non lædas. The erection and maintenance of buildings for habitation or business is a customary and reasonable use of land. Of course the landowner, in making such erections, must be held to the exercise of all due care against infringing the legal rights of others, to be determined by the nature of the rights and interests to be affected, and all the circumstances of each particular case.” Ladd, J., in Garland v. Towne, 55 N. H. 55, 58.

“Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.... The 933soil is often called property, and this use of language is sufficiently accurate for some purposes. But the proposition that the soil is property conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estate; and it is sometimes necessary to remember that the name of property belongs to some of the essential proprietary rights vested in the person called the owner of the soil.... So these proprietary rights, which are the only valuable ingredients of a landowner’s property, may be taken from him, without an asportation or adverse personal occupation of that portion of the earth which is his in the limited sense of being the subject of certain legally recognized proprietary rights which he may exercise for a short time.... One of Eaton’s proprietary rights was the correlative of R.’s duty of abstaining from such a use of air and water, and from such an interference with their quality and circulation, as would be unreasonable and injurious to the enjoyment of Eaton’s farm.” Thompson v. Androscoggin Co., 54 N. H. 545, 551, 552, 554. “Excavations maliciously made in one’s own land, with a view to destroy a spring or well in his neighbor’s land, could not be regarded as reasonable.” Swett v. Cutts, 50 N. H. 439, 447.

“If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor’s spring, why can he be permitted to shut out light and air from his neighbor’s windows maliciously, and without profit or benefit to himself? By analogy, it seems to me that the same principle applies in both cases, and that the law will interpose and prevent the wanton injury in both cases.... It must be remembered that no man has a legal right to make a malicious use of his property ... for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine in cases like the present to injure and destroy the peace and comfort, and to damage the property, of one’s neighbor, for no other than a wicked purpose, which in itself is or ought to be unlawful. The right to do this cannot, in an enlightened country, exist either in the use of property or in any way or manner.... The right to breathe the air, and to enjoy the sunshine, is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.” Morse, J., in Burke v. Smith, 69 Mich. 380, approved and unanimously adopted in Flaherty v. Moran, 81 Mich. 52, above cited.

“While one may in general put his property to any use he pleases not in itself unlawful, his neighbor has the same right to the undisturbed enjoyment of his adjoining property.... What standard does the law provide?... Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under 934all the circumstances.” Ladd v. Brick Co., 68 N. H. 185,186. “The common-law right of the ownership of land, in its relationship to the control of surface water, as understood by the courts of this state for many years, does not sanction or authorize practical injustice to one landowner by the arbitrary and unreasonable exercise of the right of dominion by another” (Franklin v. Durgee, supra), but makes the test of the right the reasonableness of the use under all the circumstances. In such case the purpose of the use, whether understood by the landowner to be necessary or useful to himself, or merely intended to harm another, may be decisive upon the question of right. It cannot be justly contended that a purely malicious use is a reasonable use. The question of reasonableness depends upon all the circumstances—the advantage and profit to one of the use attacked, and the unavoidable injury to the other. Where the only advantage to one is the pleasure of injuring another, there remains no foundation upon which it can be determined that the disturbance of the other in the lawful enjoyment of his estate is reasonable or necessary. There is no sound ground upon which a distinction can be made against the plaintiff’s right to use his land for the enjoyment of the air and light which naturally come upon it, in favor of his right to use it to enjoy the waters which naturally flow upon or under it, except the fact that the use of land for buildings necessarily cuts off air and light from the adjoining estate. The fact that the improvement of real estate in this way for a useful purpose, universally conceded to be reasonable, may affect the adjoining owner’s enjoyment of his estate to the same extent as a like act done solely to injure the other, is not a sufficient reason for distinguishing the right to build upon the surface from the right to dig below it or to control the surface itself. Jurisdictions which reject the doctrine of reasonable necessity, reasonable care, and reasonable use, which “prevail in this state in a liberal form, on a broad basis of general principle” (Haley v. Colcord, 59 N. H. 7), as applied to the ownership of real estate, in favor of the principle of absolute dominion, may properly consider a malicious motive immaterial upon the rightfulness of a particular use; but in this state, to do so would be to reject the principle announced in Bassett v. Company, 43 N. H. 569, and repeatedly reaffirmed during the last forty years.

It is to be conceded that the maxim sic utere tuo ut alienum non lædas is to be applied as forbidding injury, not merely to the property, but to the right of another. Ladd v. Brick Co., 68 N. H. 185; Pittsburg, &c. R’y v. Bingham, 29 Ohio St. 364; Letts v. Kessler, 54 Ohio St. 73; Bonomi v. Backhouse, E. B. & E. 622, 643; Jeffries v. Williams, 5 Exch. 792. But the landowner’s right in the enjoyment of his estate being that of reasonable use merely, there attaches at once to each the correlative right not to be disturbed by the malicious, and hence unreasonable, use made by another. To hold that a right is 935infringed because, by the noxious use made by another, the air coming upon a landowner’s premises is made more or less injurious, and to deny the invasion of a right by an unreasonable use which shuts off air and light entirely, is an attempt to bound a right inherent and essential to the common enjoyment of property by the limitations of an ancient form of action. An unreasonable use of one estate may constitute a nuisance by its diminution of the right of enjoyment of another, without furnishing all the elements necessary to maintain an action quare clausum fregit; though in particular cases it may be said that no right is invaded unless something comes from the one lot to the other. Lane v. Concord, 70 N. H. 485, 488, 489; Thompson v. Androscoggin Co., 54 N. H. 545, 552; Wood, Nuis., s. 611. As, therefore, the statute does not deprive the plaintiff of any right to reasonable use, it does not deprive him of any property right. Hence it is not necessary to inquire whether, as an invasion of property rights, the limitation of the statute is one which might properly be made for the general good.

The objection based upon the unconstitutionality of the statute is not sustained, and the exception to the denial of the motions for a nonsuit and to direct a verdict upon that ground is overruled.

[The verdict was set aside on account of an erroneous ruling as to the admission of evidence]^[589]

KEEBLE v. HICKERINGILL In the Queen’s Bench, Trinity Term, 1706. Reported in 11 East, 574, note.

Action upon the case. Plaintiff declares that he was, 8th November in the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, et de quodam vivario, vocato a decoy pond, to which divers wild fowl used to resort and come; and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines, and other engines for the decoying and taking of the wild fowl, and enjoyed the benefit in taking them: the defendant knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wild fowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six 936guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wild fowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wild fowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages.

Holt, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy is lawful. Secondly, this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so? Though they do not affect any damage, yet are they mischievous in themselves; and therefore in their own nature productive of damage; and therefore an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punishment; as to say a merchant is broken, or that he is failing, or is not able to pay his debts, 1 Roll. 60, 1; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving profit by his employment. Now there are two sorts of acts for doing damage to a man’s employment, for which an action lies; the one is in respect of a man’s privilege; the other is in respect of his property. In that of a man’s franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action; though by grant from the King. But therein is the difference to be taken between a liberty in which the public hath a benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15. The other is where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own 937ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. One schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new. (The action there was held not to lie.) But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for horses sold: a man is bringing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action lies, because it imports damage. Action upon the case lies against one that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H. 6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass was brought for beating his servant, whereby he was hindered from taking his toll; the obstruction is a damage, though not the loss of his service.^[590]

IBOTTSON v. PEAT In the Exchequer, May 1, 1865. Reported in 3 Hurlstone & Coltman, 644.

Bramwell, B.^[591] I am also of opinion that the plaintiff is entitled to judgment. The declaration states that the plaintiff being possessed of certain land, the defendant unlawfully and with intent to drive and frighten away game then being on the land of the plaintiff, and to prevent him from shooting them, fired rockets and combustibles close to and over the land of the plaintiff, so as to be a nuisance to him. The defendant by his plea admits that the matter alleged is true, but sets up a right to do what is complained of for the purpose attributed to the defendant in the declaration, viz., to prevent him from shooting the game. Then what is the reason given? It is this:—“The game which I frightened was game which you enticed away from the Duke of Rutland’s land, by placing corn and other food for them on your land; and therefore I, as the servant of the Duke, in order to prevent you from shooting the game, and from continuing to entice them, did the acts complained of.” In my opinion that is a bad plea. There is nothing in point of law to prevent the plaintiff from doing that which the plea alleges he has done. I say “in point of law,” because it cannot 938be contended for a moment that any action would lie against the plaintiff. As to the propriety of such conduct between gentlemen and neighbors I say nothing. Where a person’s game is attracted from his land, he ought to offer them stronger inducements to return to it. It is like the case I referred to in the course of the argument, Chasemore v. Richards, 2 H. & N. 168, 7 H. L. 349, which shows that if a man has the misfortune to lose his spring by his neighbor digging a well, he must dig his own well deeper.

Judgment for the plaintiff.

FISHER v. FEIGE Supreme Court, California, July 14, 1902. Reported in 137 California Reports, 39.

Appeal by defendants from a judgment in favor of plaintiff.

Plaintiff is a lower riparian proprietor on a certain watercourse, and defendants are upper riparian proprietors thereon. The action was brought to recover damages in the sum of five thousand dollars for certain alleged interferences by defendants with the flow of the water in the stream, and for a perpetual injunction restraining defendants from their repetition of the alleged wrongs.^[592]

It is averred that along and adjacent to the stream as it flows through defendants’ land there is a heavy growth of timber, which, before the alleged wrongful acts of defendants, protected the waters of the stream from evaporation by drying winds and the rays of the sun, and that the defendants have cut and felled a large number of trees, and thus let in the sun and the wind and caused the waters to be diminished by evaporation, so that not as much flowed down on to plaintiff’s land as formerly; and that they threatened to fell more of said trees in the future.

It is also averred, and found by the court, that said acts were done by defendants “solely for the purpose of injuring the plaintiff and damaging his said property, and out of spite and ill-will towards the plaintiff.”

The court found that plaintiff was damaged in the sum of one cent by the alleged wrongs, for which amount judgment was rendered. By the judgment the defendants were also “perpetually enjoined” ... “from cutting or felling the timbers and trees growing in the channel and upon the immediate banks of said stream at any point above the said lands of the plaintiff, whereby the said stream will be exposed to the rays of the sun and the waters thereof lost or materially diminished by evaporation.”