
    The People of the State of New York, Respondent, v. Henry E. Kane et al., Appellants.
    Upon trial of an indictment under the provision of the Penal Code (§ 654), declaring it to be a crime, punishable as prescribed, where a person “ unlawfully destroys or injures any real or personal property of another,” these facts appeared: D. unlawfully placed a boat upon a pond owned by K.; he refused to remove it when required so to do by K., and several times, when the latter took it out of the water, he replaced it, and finally chained it to a tree to prevent further removal. Defendants, acting under instructions of K., to protect his possession from the trespass for which the boat was brought to the pond and used, and acting under advice of counsel, openly and without concealment took the boat from the water and broke it up. Held, that the evidence did not warrant a verdict against defendants, and the denial of a motion to set aside such a verdict was error; that the destruction of the boat, the instrument with which a persistent, repeated and defiant trespass had been perpetrated, was justifiable.
    (Argued April 35, 1894;
    decided May 4, 1894.)
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 1, 1893, which affirmed a judgment of the Court of Sessions of Suffolk county, entered upon a verdict convicting defendants upon an indictment under the Penal Code (§ 651) charging defendants with unlawfully, and willfully destroying a boat belonging to one Lewis S. Davis. It'appeared that Davis had, without right, placed the boat upon a mill pond, which was the property of one Edward Kane. The latter put the pond in charge of his son, one of the defendants, with instructions' not to allow trespassers upon ■it. Davis owned a farm adjoining said pond, and persisted in sailing his boat thereon, although several notices had been given him to remove it from the pond. On the day it was destroyed defendants found it afloat, fastened by a chain extending from its how to a tree on Davis’ land; they went in another boat, and, without going upon Davis’ land, unfastenecl the chain, took the boat out of the water and broke it up.
    Further facts are stated in the opinion.
    
      Livingston Smith for appellant.
    The fact of Davis having had his boat on the pond is no evidence of a user under a claim of right adverse to Edward Kane, and was no notice to him of a claim inconsistent with his rights or title. Davis trespassed on the pond of Edward Kane regardless of his protests and rights through malice and with an intent to injure and annoy him, and was, therefore, guilty of a misj demeanor. (Code Crim. Pro. § 56, subd. 18 ; People v. Smith, 5 Cow. 258.) The defendant Henry E. Kane, acting under his father, the owner, had the right to defend his possession of the pond. (Carey v. People, 45 Barb. 262 ; Filkins v. People, 69 N. Y. 101 ; Bliss v. Johnson, 73 id. 529 ; People v. Kane, 131 id. 111.) The defendant Henry E. Kane, aided by William Ford, destroyed the boat with the lawful intention of defending his possession of his father’s mill pond; and to constitute the crime of unlawful and willful destruction of property it must appear to have been committed with a criminal motive. (People v. Flack, 125 N. Y. 324.) The defendant Henry E. Kane, aided by the defendant William Ford, had a perfect right to destroy the trespassing boat of Davis in defense of his possession of his father’s mill pond; and if he did destroy it in defense of that ]30ssession the criminality is lacldng which constitutes the punishable offense against the People. (People v. Kane, 131 N. Y. 111.) FTo crime was committed. (People v. Kane, 131 N. Y. 116.) The refusal to charge the jury that the ownership and possession of property confer a certain right to defend that possession, and that the means wrongfully used to invade and interfere with it may be lawfully destroyed, was error. (People v. Kane, 131 N. Y. 115.)
    
      Walter H. Jayeox for respondents.
    The question whether the destruction of the boat by the defendants was unlawful was a question of fact for the jury. (People v. Kane, 131 N. Y. 116 ; People ex rel. v. French, 92 id. 306 ; People v. Hovey, Id. 558 ; People v. Boas, Id. 562 ; People v. Donovan, 101 id. 632.) This court will not review questions of fact passed upon by a. jury. (Code Civ. Pro. § 1331 ; People v. Stone, 117 N. Y. 483 ; Ensign v. Ensign, 120 id. 657 ; People v. Wayman 128 id. 586 ; People v. Trezza, 125 id. 740 ; People v. Loppy, 128. id. 630.) The question of the unlawful character of the act of the defendants was fairly submitted to the jury. (People v. Dimick, 107 N. Y. 26 ; Caldwell v. N. J. S. Co., 41 id. 282 ; People v. McCallam, 103 id. 597 ; People v. Wright,. 138 id. 631 ; Eggler v. People, 56 id. 642 ; Greenfield v. People, 85 id. 76 ; People v. Wilson, 141 id. 191.)
   Finch, J.

There was no evidence in this case to warrant-the verdict of the jury, and the motion of the defendants to set that verdict aside should have been granted. The trial judge charged the jury that if the destruction of the boat was in the defense of the possession of property, the criminality was lacking which constitutes the punishable offense against the People. That charge was taken from the opinion rendered on an appeal from a previous judgment of conviction in this case (131 N. Y. 111), and should have ended the controversy, for the proof showed clearly that the boat was destroyed in an effort to protect property against a persistent, repeated and defiant trespass upon the rights of its owner. There was not a particle of evidence to the contrary, and not the least ground for the suggestion that the act may have been wanton and unnecessary, which is the palpable inference from the language of the charge. The act was done by the defendants under instructions from the owner to protect the possession against the trespass for which this boat was brought to the pond and used; they had no quarrel with its owner and no personal difficulty with him ; they took the boat on the water and without trespass on his land ; and broke it up in the daylight, near to a public highway, openly and without concealment and after advice by counsel that they had a right so to do. The trial judge charged, as this court had already decided, that the owner of the pond was not bound to resort to an action at law instead of himself defending his possession. Granting that, what other effectual or reasonable ■ remedy remained than to destroy the boat which was wrongfully on the pond, and put there and kept there for the avowed purpose of defying the owner’s right i One remedy might be to remove the boat from the water. That certainly would be mild enough and was tried twice at least and failed. The boat was hauled out and left upon the land: the trespasser promptly shoved it back into the water. Then Kane, with the aid of a horse, moved it away from the shore and over a bank. The trespasser took his horse and replaced the boat in the water and chained it to a tree. Plainly, that sort of procedure was useless. Another remedy might be to endure the presence of the boat upon the water, hut watch for the trespasser’s use of it and then employ force enough to eject it and him. That would have been lawful (Filkins v. People, 69 N. Y. 101), but the defendants Avere not bound to wait for that, nor pursue a mode of resistance sure to end in personal violence. The only other remedy Avas to destroy the boat, and in that manner end the trespass. The law, in its OAvn operation, in peculiar cases Avliere the' act is effectual to repress a wrong, does not hesitate explicitly to authorize the destruction of the instrument Avitli Avhicli the Avrong is both done at the moment and threatened for the future; as in the case of nets and seines used in violation of the restraints upon fishing: and so there was nothing inherently vicious in the character of the remedy. There was, therefore, in the facts of the case, as we said on the previous appeal, excusable cause for the act which the judgment rendered denounces as a crime and for Avhicli the defendants were sentenced to the penitentiary. The public law cannot so be wrested to the purposes of private and personal revenge in behalf of the original wrongdoer.

The courts below appear to have supposed that because we ordered a new trial there must have been in our judgment some question of fact for the jury. But we could not know what new evidence might be given. Proof was possible which would raise a disputed question of fact, and we had no right to assume that it might not exist. If we had been sure then, or could be sure now, that no other facts were possible of proof except those stated in this record, we might end the controversy quickly; but, instead, we must again reverse the judgment and order a new trial. If when that occurs .the facts appear as they appear now it will be the duty of the trial court to order an acquittal.

How far one may go, what force he may use, what acts of defense are excusable in the protection of premises or property are usually mixed questions of law and fact to be submitted to the jury under proper instructions from the court (Filkins v. The People, supra), because always dependent upon the facts and circumstances of the particular case, such as the manner and character of the trespass, the instrumentalities through which it is accomplished, and the opportunities or reasonable means of defense. What we decide now is that upon the undisputed evidence in this record, and nndér the peculiar and specific circumstances disclosed, there was no ground for convicting the defendants of a criminal offense.

The judgment should be reversed, and a new trial granted.

All concur, except Eabl, J., dissenting.

Judgment reversed.  