By: Robert A. Biggs, III
In the history of American jurisprudence, there have been many instances in which courts have been tasked with balancing the interests of two competing legal principles solidly ingrained in established jurisprudence. In the end of that process, there is typically a winner and a loser. One such instance was recently reflected in a decision handed down by the Mississippi Supreme Court on May 23, 2024, in its en banc decision styled Steve Allen, et al vs Steven Featherstone Dickerson, et al , No. 2023-CA 00067-SCT, The decision reflected the clash of two immutable and enduring legal principles; namely, the right to quiet enjoyment of an ownership interest in land and the right to hunt and harvest wildlife. After a lengthy forty plus page opinion which sorted out extensive testimony presented by both parties to the controversy, the right to hunt and harvest wildlife historically established over many years by a hunting club succumbed to the paramount right of adjoining landowners to the quiet enjoyment of their property.
The plaintiffs bringing the original action owned 220 acres of land more or less adjacent to 900 acres of land leased by a hunting club. The nearest point between two properties lines was a mile and a half and a public road also divided the respective properties. The plaintiffs alleged in their complaint that repeated intrusion of their property by hunting dogs created a private nuisance and violated their right to the quiet enjoyment of their property. Plaintiffs sought, among other relief, a permanent injunction prohibiting the defendants from running dogs on their property. Among the alleged disturbances created by the hunting dogs were the fact that the annoyance the dogs created a fear of danger to their children and the fact that the noise from the barking dogs made it difficult for the plaintiff to still hunt for deer on his own property.
The abundance of whitetail deer in Mississippi has created a growing interest in hunting and the multimillion dollar industry surrounding it. Technology has greatly enhanced the sophistication of the sport. Hunters now can use GPS tracking collars to monitor the location of dogs released for a hunt by a receiver programed to receive an update every three seconds and are accurate to a distance of three feet. Such devices were used by the defendants in this case.
To counter the allegations of plaintiff’s complaint, the defendants presented proof from witnesses that the hunters were not technically trespassing onto the property of plaintiffs, but rather collecting their dogs during and after the hunt. In doing so, they waited at the public road dividing the properties and summoned the dogs to that location. Testimony was also presented that the club had established a right to hunt dogs owing to the longstanding practice of doing so. It was admitted by testimony, however, that while the every effort was made to keep the dogs on the property on which permission to hunt was extended, there was no way to know which way they will ultimately travel as they will inevitably follow the deer. In this case, the dogs often strayed, albeit temporarily onto the land of the plaintiffs.
The Two Competing Doctrines
To understand the ultimate rationale for the holding of the Court in this case, we must revisit the genesis of the law which has its origins in English common law and adopted in American jurisprudence. The Court first acknowledged the longstanding principle that the rights derived from ownership in realty are quite extensive. To quote, “A man’s home is his castle” is said to be attributable to Sir Edwin Coke, an English barrister, judge and politician in 1628 AD. Coke wrote a series of legal treatises between 1628 and 1644. The Institutes of the Lawes of England, is widely acknowledged as a foundation for common law and drawn upon by the United States Supreme Court in its opinions. The likely origins had its earliest penumbras in Roman law. The doctrine is reflected in what is known as “The Castle Doctrine”, which has survived as a defense for those accused of the use of excessive force against trespassers who invade a person’s home for nefarious purposes. The rights derived from ownership in land have been acknowledged and both broad and extensive as was earlier expressed in common law that “[T]he very idea of property entails that sole and despotic dominion which one man claims and exercises over the external things of the world to the total exclusion of the right of any other individual in the universe.” William Blackstone, Commentaries on the Laws of England 2 (1776).
The Court likewise recognized the historical traditions of a citizen’s right to “hunt and harvest wildlife. In support thereof the Court the express intent of the Mississippi Legislature to expressly allow for a designated open season on deer with dogs under Mississippi Code Section 49-7-31. The Court also cited the Mississippi Constitution which expressly states that, “[C]itizens have the right to hunt, fish and harvest wildlife, including by the use of traditional methods, subject only to laws and regulations that promote wildlife conservation and management and that preserve the future of hunting and fishing, as the Legislature may prescribe by general law…”
In further support of Mississippi’s acknowledgment of the right to hunt for wildlife, the Court quoted the impassioned dicta in its prior decision in Strong v Bostick, written by former Justice Roy Noble Lee, “Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall Morning; or has never heard a wild turkey gobble in April, or seen him strut during mating season; or has never watched a deer bound in the woods and fields, or heard a pack of hounds fun a fox, or tree a coon (racoon); or have never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for a bass or caught a bream of a light line or rod, or taken a catfish from a trotline and limb hook; has never lived.”
The stridency of the two parties positions and the history of these two prevailing principles of law, presented a challenging issue for ultimate resolution by the Court.
In so doing the Court reviewed its prior decisions in which these two principles of law had come to conflict. Prior cases cited by the Court involved interesting fact issues to include a conflict between a saloon owner who had operated a business for 25 years vs the right to quiet enjoyment of a tenant who had recently moved into an adjacent apartment, a conflict between an outdoor movie theatre and the noise emanating from it and the quiet enjoyment of a homeowner a quarter of a mile away, and case involving the creation of a gamecock breeding consisting of 100 birds in proximity to its neighbors home. All of these decisions presented the balancing of the competing interests of individual landowners.
The ultimate decision by the Court was to uphold the sacrosanct right of the plaintiffs to the freedom of the quiet enjoyment of their property, to the exclusion of the nuisance of occupying hunting dogs which inevitably roamed onto their property, even if it ran afoul of a longstanding history and claimed right of the adjoining hunting club to use the dogs in their claimed right to hunt and harvest them. The Court acknowledged that any future review of similar case involving these two legal principles would necessarily involve a careful fact specific analysis on a case by case basis.
By: Robert A. Biggs, III
In the history of American jurisprudence, there have been many instances in which courts have been tasked with balancing the interests of two competing legal principles solidly ingrained in established jurisprudence. In the end of that process, there is typically a winner and a loser. One such instance was recently reflected in a decision handed down by the Mississippi Supreme Court on May 23, 2024, in its en banc decision styled Steve Allen, et al vs Steven Featherstone Dickerson, et al , No. 2023-CA 00067-SCT, The decision reflected the clash of two immutable and enduring legal principles; namely, the right to quiet enjoyment of an ownership interest in land and the right to hunt and harvest wildlife. After a lengthy forty plus page opinion which sorted out extensive testimony presented by both parties to the controversy, the right to hunt and harvest wildlife historically established over many years by a hunting club succumbed to the paramount right of adjoining landowners to the quiet enjoyment of their property.
The plaintiffs bringing the original action owned 220 acres of land more or less adjacent to 900 acres of land leased by a hunting club. The nearest point between two properties lines was a mile and a half and a public road also divided the respective properties. The plaintiffs alleged in their complaint that repeated intrusion of their property by hunting dogs created a private nuisance and violated their right to the quiet enjoyment of their property. Plaintiffs sought, among other relief, a permanent injunction prohibiting the defendants from running dogs on their property. Among the alleged disturbances created by the hunting dogs were the fact that the annoyance the dogs created a fear of danger to their children and the fact that the noise from the barking dogs made it difficult for the plaintiff to still hunt for deer on his own property.
The abundance of whitetail deer in Mississippi has created a growing interest in hunting and the multimillion dollar industry surrounding it. Technology has greatly enhanced the sophistication of the sport. Hunters now can use GPS tracking collars to monitor the location of dogs released for a hunt by a receiver programed to receive an update every three seconds and are accurate to a distance of three feet. Such devices were used by the defendants in this case.
To counter the allegations of plaintiff’s complaint, the defendants presented proof from witnesses that the hunters were not technically trespassing onto the property of plaintiffs, but rather collecting their dogs during and after the hunt. In doing so, they waited at the public road dividing the properties and summoned the dogs to that location. Testimony was also presented that the club had established a right to hunt dogs owing to the longstanding practice of doing so. It was admitted by testimony, however, that while the every effort was made to keep the dogs on the property on which permission to hunt was extended, there was no way to know which way they will ultimately travel as they will inevitably follow the deer. In this case, the dogs often strayed, albeit temporarily onto the land of the plaintiffs.
The Two Competing Doctrines
To understand the ultimate rationale for the holding of the Court in this case, we must revisit the genesis of the law which has its origins in English common law and adopted in American jurisprudence. The Court first acknowledged the longstanding principle that the rights derived from ownership in realty are quite extensive. To quote, “A man’s home is his castle” is said to be attributable to Sir Edwin Coke, an English barrister, judge and politician in 1628 AD. Coke wrote a series of legal treatises between 1628 and 1644. The Institutes of the Lawes of England, is widely acknowledged as a foundation for common law and drawn upon by the United States Supreme Court in its opinions. The likely origins had its earliest penumbras in Roman law. The doctrine is reflected in what is known as “The Castle Doctrine”, which has survived as a defense for those accused of the use of excessive force against trespassers who invade a person’s home for nefarious purposes. The rights derived from ownership in land have been acknowledged and both broad and extensive as was earlier expressed in common law that “[T]he very idea of property entails that sole and despotic dominion which one man claims and exercises over the external things of the world to the total exclusion of the right of any other individual in the universe.” William Blackstone, Commentaries on the Laws of England 2 (1776).
The Court likewise recognized the historical traditions of a citizen’s right to “hunt and harvest wildlife. In support thereof the Court the express intent of the Mississippi Legislature to expressly allow for a designated open season on deer with dogs under Mississippi Code Section 49-7-31. The Court also cited the Mississippi Constitution which expressly states that, “[C]itizens have the right to hunt, fish and harvest wildlife, including by the use of traditional methods, subject only to laws and regulations that promote wildlife conservation and management and that preserve the future of hunting and fishing, as the Legislature may prescribe by general law…”
In further support of Mississippi’s acknowledgment of the right to hunt for wildlife, the Court quoted the impassioned dicta in its prior decision in Strong v Bostick, written by former Justice Roy Noble Lee, “Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall Morning; or has never heard a wild turkey gobble in April, or seen him strut during mating season; or has never watched a deer bound in the woods and fields, or heard a pack of hounds fun a fox, or tree a coon (racoon); or have never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for a bass or caught a bream of a light line or rod, or taken a catfish from a trotline and limb hook; has never lived.”
The stridency of the two parties positions and the history of these two prevailing principles of law, presented a challenging issue for ultimate resolution by the Court.
In so doing the Court reviewed its prior decisions in which these two principles of law had come to conflict. Prior cases cited by the Court involved interesting fact issues to include a conflict between a saloon owner who had operated a business for 25 years vs the right to quiet enjoyment of a tenant who had recently moved into an adjacent apartment, a conflict between an outdoor movie theatre and the noise emanating from it and the quiet enjoyment of a homeowner a quarter of a mile away, and case involving the creation of a gamecock breeding consisting of 100 birds in proximity to its neighbors home. All of these decisions presented the balancing of the competing interests of individual landowners.
The ultimate decision by the Court was to uphold the sacrosanct right of the plaintiffs to the freedom of the quiet enjoyment of their property, to the exclusion of the nuisance of occupying hunting dogs which inevitably roamed onto their property, even if it ran afoul of a longstanding history and claimed right of the adjoining hunting club to use the dogs in their claimed right to hunt and harvest them. The Court acknowledged that any future review of similar case involving these two legal principles would necessarily involve a careful fact specific analysis on a case by case basis.
