
    [Department One.
    May 11, 1883.]
    DENNIS C. DINAN, Respondent, v. F. FITZ GIBBON et al., Appellants.
    Assault—Deadly Weapon—Pbotection of Property—Instructions.—The plaintiff sued to recover damages for an alleged assault m which he was seriously wounded by the discharge of a gun. The defendant Gibbon and the mother of the plaintiff were the owners of adjoining lots in the city of San Francisco, and a dispute existed between them as to the division line. Gibbon erected a shed about ten feet high near the line, and the plaintiff claimed that the roof of the shed projected over upon the land of his mother. Gibbon was notified of the projection, hut disregarded the notice. There was evidence tending to show that he believed the shed to be wholly on his own land, that at the time of the assault, the plaintiff, assisted by several other persons, was proceeding with force and violence to remove what he claimed to he the projecting portion of the roof, that Gibbon was not present, but his nephew, acting under directions from him, appeared with a loaded gun, and declared his intention to protect the shed from injury, that the plaintiff and one of the persons with him attempted to get possession of the gun, and that a struggle ensued in the course of which the gun was discharged and the wound inflicted. The court instructed the jury substantially that the mere fact of the use of such a weapon gave the plaintiff the right to recover. Held, that the instruction was erroneous.
    
      Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. 1
    The facts are stated in the oninion of Mr. Justice McKee.
    
      Jarboe & Harrison, for Appellants,
    argued that the instruction of the court as to the right to use fire-arms in defense of property was erroneous, citing section 197 of the Penal Code; Pond v. The People, 8 Mich. 166; People v. Flanagan, 60 Cal. 2; Miller v. State, 74 Ind. 1; Taylor v. Clendening, 4 Kan. 534; Morris v. Platt, 32 Conn. 75.
    
      Fox & Kellogg, for Respondent,
    argued that the defendants were not acting in defense of person or habitation, and that the instructions of the court, taken as a whole, fairly submitted the case to the jury, citing Prooks v. Crosby, 22 Cal. 42; Conroy v. Duane, 45 Cal. 597; Siemers v. Eisen, 54 Cal. 418.
   McKee, J.

This was an action to recover damages as compensation for injuries sustained from an assault on the plaintiff alleged to have been committed by the defendants.

The case was given to the jury upon evidence tending to show that the alleged assault had been committed under the following circumstances: Defendant Gibbon and the mother of the plaintiff were owners of adjacent parcels of land in the city of San Francisco. There was a dispute between them as to the true division line of the lots. Gibbon had constructed near to what he believed to be the line a shed about ten feet high, the roof of which, according to the assertion of the plaintiff, projected over a part of his mother’s lot and came near to her house. Notice of the projection was given to the defendant, but he gave no heed to it. In that state of the question, the plaintiff on the 25th of September, 1876, took several men on to his mother’s lot to saw off that part of the roof of the shed which extended over so much of his mother’s lot as lay between her house and the supposed dividing line, and to move her house close up to that line. One of the men had mounted the roof of the shed and was in the act of sawing off the projection when the defendant, Quinlan, appeared on the balcony of the house on Gibbon’s lot armed with a double-barreled shotgun, which Gibbon had loaded with powder and buckshot, and put in the hands of Quinlan, “ to watch his property against the Dinans.” To prevent Quinlan from using the gun against the person on the shed, the plaintiff and another caught hold of the gun and a contest resulted between the parties, in which the gun in the hands of Quinlan was discharged into the body of the plaintiff, severely wounding him.

On submitting the case to the jury, the court, among other things, instructed them as follows:—

“1. You are instructed that the controversy over this piece of land did not justify the use of fire-arms in its settlement; that a person has no right to use deadly weapons excepting it be in the defense of life or in the protection of his domicile. Those are the only cases in which a party is authorized under the laws of this State to use anything which is calculated to produce death.

“ 2. If you believe from the evidence that the defendant did use this weapon for the purpose of this transaction—for the purpose of producing great bodily injury—if he used it, in fact, at all, to resist the encroachment even of the plaintiff in this action, then it is your duty, under the law, to find a verdict against him for the actual damages which the plaintiff sustained, whether there was malice in it or not.

“3. The very fact that the defendant used this unlawful weapon gives the plaintiff the right to recover.”

Of course, if the evidence showed that the defendant only used the weapon for the deliberate purpose of producing great bodily injury on the plaintiff, it would have been the duty of the jury to find for the plaintiff. The use of a deadly weapon for such a purpose would render a party not only civilly but criminally liable. No one is justifiable in law, even under a pretense of right, to inflict on another a wanton and malicious assault. But if the defendant used the weapon “to resist the encroachment of the plaintiff” as a trespasser on his premises, such use would not be unlawful, unless it was unnecessary. For there is no doubt that a person in the lawful possession of premises has a right to protect them or to eject an intruder upon them; and in the exercise of his right, for that purpose, he may use such force as may be reasonably necessary. Acting within the limits of a reasonable use of force to protect himself or his property he is justifiable in law; but if he exceeds the force necessary he becomes a trespasser ab initia. Yet the necessity of the force which was resorted to, to repel the “ encroachment ” of the plaintiff upon the defendants’ premises, and the question whether the defendants used more force and violence upon the person of the plaintiff than was necessary for the protection of their property, should have been left to the jury. It was interfering with their constitutional right to determine all matters of fact, for the court to instruct them that the mere use of the Aveapon to resist the encroachment of the plaintiff gave him the right to recover.

Besides, if the plaintiff Avas the aggressor, and had actually employed others to destroy what Avas confessedly the property of the defendant, and Avas aiding and abetting them in such attempt to destroy it, in the performance of which he received his injuries, these circumstances were proper for the consideration of the jury in mitigation of damages, although they may not lurve been sufficient to justify the defendants for the use of a deadly Aveapon; and it Avas error to lead the jury aAvay from the consideration of these things by instructing them that the mere use of the weapon entitled the plaintiff to their verdict.

Judgment and order reversed, and cause remanded for a neAV trial.

Ross and McKinstry, JJ.

In vieiv of the testimony on the part of defendants, Ave agree that the court below erred in giving the third instruction mentioned in the opinion of Mb. Justice McKee, and, therefore, concur in the judgment.  