
    NO. 7881.
    S. DI CRISPINA VS C. BUCCOLA.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPXWION,

By his Honor John St. Paul,

Plaintiff seeks to raoover damages for a false arrest ,nd malicious prosecution. Defendant pleads probable oause and want of malice.

Por a case of this nature the testimony is singularly free from oonfliots, and establishes indisputably the following state of facts.

Defendant leased from the HO 0. land Co. two squares of ground on the Horth side of Polk Avenue, a projected street 60 feet wide, but not open for traffic and hence not distinguishable from the surrounding territory; defendant was to clear and cultivate the land.

When the premises were pointed out to defendant the lessor marked the limits of the leased premises by making with knife or chisel a cross-mark on a wooden curbing at Orleans St; whioh runs at right angles to Polk Avenue and forms the Bastera boundary of the leased property. This mark is said by defendant to have been placed at the South side of Polk Avenue and thus to have included the whole width of that street in the land pointed out by the lessor.

Some months afterwards plaintiff leased from the same company three squares of ground ####$ on the South side of Polk Avenue, the limits of which being pointed out to-him by the same mark on the curbing; but plaintiff claims that the mark was opposite a small ditch along (say) the middle of Polk Avenue.

At the time of trialof this case (some six years after the arrest) this mark seems to have become obliterate^ and the actual location thereof is not fixed by the testimony But, be that as it may, it is certain that defendant who had entered the land at least a year before plaintiff, had taken actual possession of the whole width of Polk Avenue, and thereon had cultivated and 'gathered one crop and planted another. Which possession is hhown conclusively by a written complaint made by plaintiff to the common landlord after the planting of the second crop) to wit, that defendant was trespassing on his (plaintiff's) land.

i'he landlord having taken no notice of this complaint, plaintiff then took the law into his own hands; and going into that part of the street whioh he claimed as his, he tore up the vegitables which defendant had planted and began carting them off; possibly however, without intent to appropriate them to his wwn use, but simply to clear off the land (as he claims).

Whereupon, whilst plaintiff was in the very act of tearing up -the vegetables, defendant (whether out of prudence or out of respect for law, is immaterial) instead of opposing force to force, sought out a police officer to arrest plaintiff, whom he then charged with petty larceny.

Of this charge plaintiff was acquitted; and of oourse, with the merits of that acquittal as a criminal judgment, we are in no way concerned. But when in consequence thereof plaintiff# seeks to recover damages, then it behooves us to look into all the circumstances thereof in order to determine, not whether plaintiff were technically guilty of the specific charge against him (on which alone he could be convivted), bu£ whether there was suoh seemingly unlawful conduct on his part as justified defendant in causing his arrest; in other words, whether there was probable cause for some criminal proceeding. Sperier vs Ott, 6 Orleans App 527.

In this case it is clear that defendant wásip if not guilty of larceny, at least trespassing and inviting a breach of the peace. Indead if one in actual possession of land, and having property thereon, may not protect his possession and property by causing the arrest forthwith of a person in the very act of invading the one and oarrying off the other, then vain indeed are our oivil laws and the law of nature must re-assert itself.

Juris Gentiuu^est; Ut vim atque injuriam propulsemus^.

Dig. I.I.Z.

But the law# of this state is not so toid and inane. "An arrest may at times and under the necessity of the case he made without warrant"'; for instance to prevent a crime, or a breach the peace; or suppress a disturbance, even on private premises.

O'Malley vs Whitaker, 118 La 906 State vs Stouderman, 6 An 286 State vs Guy, 46 An 1441 Stoehr vs Payne, 132 La 213.

Moreover, even though an arrest be not strictly t/C~ justifiable, want of mailce in procur#ing^ (evident in this case) is a complete defense.

In Girot vs Graham, 41 An 511, the circumstances were almost identical with those here presented. In a dispute over the location of a party fence plaintiff undertook to locate it on the land in dispute, gefendant caused his immediate arrest without a warrant and charges followed.

Plaintiff was acquitted, but defendant was held not liable in damages because there was no malice, as defendant believed "in good faith" that he had a right to appeal to the law in that form (See p. p/ 512-513). And the court held that it was a matter involving the public interest that partías should, he tnoouragad to resort to law rather than take into their own handB to redress their supposed wrongs.

December 20th, 1920.

We are of opinion that defendant was actuated by no malioe whatever when he caused plaintiff's arrest, and did so only to protect his property, therein using (as it seems to us) the only effective means of doing so short of actual violence towards plaintiff.

The Judgment appealed from is therefore reversed, and it is now ordered that plaintiff's demand he rejeoted at his oost in both oourts.

Hew Orleans La,  