Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
2. Defense of Real Property
Bird v. Holbrook, 130 Eng. Rep. 911 (C.P. 1825)
[Plaintiff was a nineteen-year-old boy who, seeing a young woman giving chase to a stray
pea-hen, climbed the wall of a neighboring garden for the innocent purpose of retrieving the fowl,
which belonged to the young woman’s employer and had flown over the wall and into the garden.
The defendant, who leased the garden, used it to grow “valuable flower-roots,” including tulips
“of the choicest and most expensive description.” He lived one mile from the garden but
sometimes slept with his wife in a summer house on the garden grounds so as to better protect his
tulips. Shortly before the incident at issue in the case, defendant had been robbed of flowers and
roots in the value of about £20. To prevent further theft, the defendant placed in the garden a
spring gun loaded with gunpowder and buckshot and operated by wires stretching across the
garden’s paths in three or four locations. Defendant posted no notice of the spring gun, and
though the wires were visible from the wall, the defendant conceded that the plaintiff did not see
them. When the defendant told one or two people about the spring gun, he asked them not to tell
others of its presence in the garden “lest the villain should not be detected.” One witness testified
that he (the witness) had urged the defendant to post a notice of the gun, but the defendant had
answered that “he did not conceive that there was any law to oblige him to so.” “The Defendant
stated to the same person that the garden was very secure, and that he and his wife were going to
sleep in the summer-house in a few days.” Plaintiff climbed the garden wall, which was nowhere
higher than seven feet, between the hours of six and seven in the afternoon. “Having called out
two or three times to ascertain whether any person was in the garden and waiting a short space of
time without receiving any answer,” the plaintiff jumped down into the garden and pursued the
pea-hen into a corner near the summer house, where his foot came into contact with one of the
wires close to the spot where the gun was set. The wire triggered the gun, which discharged a
load of swan shot into the plaintiffs’ knee, maiming him. After the case was tried at the Bristol
assizes, plaintiff and defendant consented to enter a verdict for the plaintiff of £50, to be reserved
pending the judgment of the Court of Common Pleas.]
Merewether Serjt. for the defendant. . . . Plaintiff cannot recover for an injury occasioned
to him by his own wrongful act. . . . If a man place broken glass on a wall, or spikes behind a
carriage, one who willfully encounters them, and is wounded, even though it were by night, when
he could have no notice, has no claim for compensation. Volenti non fit injuria [no legally
cognizable injury occurs with the consent of the victim]. The Defendant lawfully places a gun on
his own property; he leaves the wires visible; he builds a high wall, expressly to keep off
intruders; and if, under those circumstances, they are permitted to recover for an injury resulting
from their scaling the wall, no man can protect his property at a distance.
Wilde in reply. . . . No illustration can be drawn from the use of spikes and broken glass
on walls, &c. These are mere preventives, obvious to the sight,—unless the trespasser chooses a
time of darkness, when no notice could be available,—mere preventives, injurious only to the
persevering and determined trespasser, who can calculate at the moment of incurring the danger
the amount of suffering he is about to endure, and who will, consequently, desist from his
enterprise whenever the anticipated advantage is outweighed by the pain which he must endure to
obtain it.
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