45 Cal. 495 | Cal. | 1873
Lead Opinion
This is an action of forcible entry and detainer, in which the plaintiff obtained a verdict and judgment, and the defendants have appealed. The errors complained of relate to the ruling of the Court on questions of evidence, and the giving of certain instructions to the jury at -the instance of the plaintiff, and the refusal of certain others requested by the defendants. The alleged forcible entry of the defendants was made
The defendants insisted during the trial that if the plaintiff had any possession it was a scrambling possession, acquired and maintained by threats and an exhibition of force, and was not such a peaceable possession as is necessary to maintain the action. With a view to establish that fact, the defendants inquired of a witness for the plaintiff whether there was not, during the whole period of the plaintiff’s occupation, a scow so arranged as to defend those on board from shot, and loaded with building material, and a pile driver close at hand prepared to come upon the property, and which was expected by the plaintiff to come upon it; and whether the men in charge of the scow and pile driver were not awaiting an opportunity to enter, whenever they could do so without using force; but the question was excluded by the Court, on the objection of the plaintiff, and this ruling is assigned as error. It was not then proposed to connect the defendants, in any manner, with the party in charge of the scow and pile driver; nor was there then any
First—Because standing alone it did not tend to prove that the original entry of the plaintiff was not peaceful, and his occupation complete. The fact that others immediately after, or even at the very time of the plaintiff’s entry, were awaiting an opportunity to enter, but made no effort to enter, nor attempted in any manner to resist the entry of the plaintiff, or to disturb his occupation afterwards, neither proves nor tends to prove that'his entry was not peaceful, and his occupation actual as well as peaceable. An occupation commenced without threats or force, and continued without any attempt to interrupt it, is a peaceable occupation in a legal sense.
Second—If such evidence was competent in an action of this character between the plaintiff and the parties in charge of the scow, or their privies, it clearly is not so in an action against other intruders. If the occupation of the plaintiff' was acquired and maintained by threats and force, as against a third party in charge of the scow, with whom the defendants were not in privity, that fact affords to these defendants no justification in law for invading the plaintiff’s occupation. As to them, his occupation, if these were the facts, was actual and peaceable. It was not acquired by threats or force as against them; nor did they ever menace it by an exhibition of force prior to their entry. If the Courts were to lend any countenance to the proposition that where there had been a struggle for the possession of land between two adverse claimants, a third party may forcibly evict the person who had actually obtained the possession, and afterwards defend himself in an action for forcible entry, on the plea that the occupation of the plaintiff was not “peaceable,”*502 this form of action would be rendered nugatory in a large class of cases which most require this summary form of remedial justice. But it does not lie in the mouth of a defendant to say that a plaintiff" whose actual possession he has invaded had not a peaceable occupation, because some third person had threatened also to invade it, or even had resisted his original entry. As between adverse claimants struggling for the possession, a different rule prevails. As between themselves, neither can maintain the action against the other until he has acquired an actual possession which has ripened into a peaceable occupation—that is to say, “ peaceable ” as between themselves. But at a subsequent stage of the case the defendants offered to prove “ that about a month before the entry complained of, defendants attempted to move the' scow upon the land, and were debarred from entering by cannon pointed and a match lighted.” This evidence was excluded, on the objection of the plaintiff, and we think the Court erred in this ruling. It was clearly competent for the defendants to prove any fact tending to show that as against them the plaintiff had only a scrambling possession, maintained by force; and though, as we have seen, it was not competent for them to prove that third persons, with whom they were not in privity, had been deterred from entering by an exhibition of force, a different rule applies in respect to a timely effort by the defendants to reenter, which they were prevented from doing only by an exhibition of firearms in a threatening manner. To maintain the action, the plaintiff' must show a “peaceable” possession, and it was clearly competent for the defendants to prove that though the plaintiff may have had the actual possession it was not a “peaceable ” possession in.the sense of the statute. It may frequently be 'difficult to define the precise point at which a possession ceases to be a scrambling possession, maintained, it may be, by threats and menaces, and has ripened into a peaceable possession. No rule of universal*503 application can be established in such cases, and each case must, of necessity, be governed by' its own circumstances. If A. be in the undisputed occupation of a dwelling house, residing in it with his family, and ifj during the temporary absence of the family for an hour, B. should intrude into the possession, barricade the doors, and on the return of A., immediately after, should not only refuse to surrender the possession, but deter him from entering by threats and menaces, and if A. should quietly submit to the wrong, and should leave B. for some weeks or months wholly undisturbed in the possession, it cannot be doubted that B. would have acquired a “peaceable ” possession, even as against A., which would enable him to maintain this form of action, if subsequently forcibly expelled by A. Though his original entry may have been fraudulent, and without the slightest color of right, nevertheless, if A. submits to it, and allows him to remain quietly in the possession for a considerable period, he cannot afterwards take the law into his own hands, and repel the intruder by force. The possession, though wrongful, and at first maintained by menaces or violence, will have ripened into a peaceable possession, for a disturbance of which this form of action would be the appropriate remedy. The peace and good order of society demands that an actual and peaceable occupation of real estate, however it may have been originally acquired, shall not be disturbed by violence. But in the case supposed, if A., instead of quietly submitting to the wrong, had immediately come with an armed force, and had endeavored to expel B., but had for a time been successfully repulsed, and without relaxing his efforts had eventually succeeded ini driving B. from the premises, it would be absurd to holcu that B. had such a “ peaceable ” possession as would enable him in an action of forcible entry and detainer to evict A., and recover the possession. His possession, though actual, was never “peaceable;” and it would be a mockery of ju¡*504 tice to hold that, under these circumstances, the law would aid the wrongdoer, who had only a temporary, scrambling possession, acquired by fraud or force, and maintained for a time by threats and violence to recover the possession from the former occupant. It was not for cases of that character that the Forcible Entry and Detainer Act was designed to furnish a summary remedy, but for cases wherein a “peaceable ” possession has been invaded. In such cases one of the issuable facts is whether or not at the time of the entry complained of the plaintiff had the “peaceable” possession 'as against the defendants, or only a scrambling occupation, maintained by force or threats, and which had not ripened into a peaceable possession. As already stated, it is often difficult to decide whether an actual possession is a peaceable or only a scrambling occupation; and in the very nature of the case it is impossible to lay down an inflexible rule by which to determine whether a possession is a peaceable or a contested and scrambling possession. Each case must be decided by a jury, on its own circumstances, under proper instructions from the Court.
The defendants inquired of a witness whether he knew the property in the month of June preceding the entry in November. There was no explanation of the purpose with which the question was asked, and the Court excluded it as irrelevant. Without an explanation of its object, we do not perceive its materiality, nor that the defendants were injured by its exclusion. The defendants inquired of their witness, Seguine, who erected the fence around block one hundred and sixty-nine (part of the property in contest), whether he knew the condition of the property and fence at the time of the plaintiff’s entry, and he was requested to
The counsel for defendants insists this proof was competent, not for the purpose of establishing title in the defendants, but as tending to explain the nature of the plaintiff’s alleged occupation, and to show that he had not the actual possession. The land in contest is a salt marsh in the margin of the Bay of San Francisco, and is entirely covered with water at high tide. It is not fit for cultivation, nor for any practical use, until it shall have been reclaimed. There is no contest on this point.
The testimony would have been competent if, in connection with the conceded facts, it had tended, in any appreciable degree, to show that the plaintiff at the time the defendants entered had not the actual possession. The argument on behalf of defendants on this point is, that inasmuch as the land was a mud flat, covered by the tides, and incapable of being devoted to any useful purpose in its then condition, if the defendants, or those under whom they
But this rule has no application to a case in which the plaintiff entered without resistance, and has remained undisturbed in the possession for some weeks or months. The testimony was, therefore, properly excluded.
We come now to the instructions. The first, second, fifth, sixth, seventh, eighth, and ninth asked by the defendants were properly refused, because there was no testimony in the cause to warrant them. The third and fourth were also properly refused, because there was no testimony in the cause tending to show that the defendants, or those under whom they claimed, had either resisted the entry of the plaintiff, or had sought to disturb his occupation at any time prior to the entry complained of; and if third persons in charge of the scow had threatened the plaintiff’s possession, and if he kept an armed force to resist the threatened attack, this did not prove, or tend to prove, that his occupation was not actual and peaceable as against the defendants. This point has already been sufficiently discussed. The tenth instruction was to the effect that if there was more than one forcible entry and detainer of separate parcels of the land, in which entries the defendants did not join, but acted independently and severally, without concert, the action must fail. The only evidence in the case tending to show a separate entry by any of the defendants on a distinct parcel re
The twelfth instruction refused was to the effect that “ one tenant in common cannot maintain the action alone; all the tenants in common must join in the action.”
We think this instruction was properly refused. The statute provides that “ all persons holding as tenants, joint tenants, or coparceners, or any number less than all, may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party.” (Stats. 1857, p. 62.) If the action of forcible entry and detainer is a civil action, it is within the letter, as it clearly is within the spirit, of this provision. However this form of action may originally have been classified, we entertain no doubt that it is a “ civil action ” within the intent of the statute above quoted. Section thirteen of the Forcible Entry and Detainer Act provides that “the proceedings in or upon the trial of any such action shall be the same as in other civil cases, except as herein otherwise provided, and judgment shall be entered, execution issued, and other proceedings, both before and subsequent to the judgment, be had as in other civil cases;” and section seven requires the pleadings to be verified as u in other civil cases.” The action is commenced by complaint and summons, and the defendant may answer or demur as in other civil actions. The pleadings and proceedings being the same as in civil cases, except as otherwise specially provided by the Act, and no reason founded on the policy of the law being perceived why this form of action should be excepted from the general rule established by the statute of 1857, permitting tenants in common to sue jointly or severally, our conclusion is that it is a civil action within the true intent of that statute, and consequently the twelfth instruction was properly refused.
Judgment reversed and cause remanded for a new trial.
Dissenting Opinion
The plaintiff had the actual possession of the premises up to the night of the eighteenth, or rather the morning of the nineteenth of November, about three o’clock a. m., when the defendants, with some fifteen or more men, armed with guns and pistols, wrested it from him by force. He thereupon instituted this action of forcible entry and detainer, in which, after a jury trial of some ten days’ duration, he recovered a judgment of restitution. Of course the defendants had the right to prove, if they could, that the possession of the plaintiff, which they had invaded, was not at the iim.e a peaceable possession; for the statute under which the action was brought requires that the plaintiff should establish a possession, both peaceable and actual. It appears that the plaintiff had had the actual possession for more than one whole month next before the defendants entered; and the latter, in order to show it to have been scrambling and not peaceable in its character, offered to prove that they themselves had, “ about a month before the entry complained
The proffered evidence, if either admitted or rejected, is not of sufficient significance to affect the merits of the question; for, even if admitted, I do not suppose that an intelligent jury would have regarded it as characterizing the possession of the plaintiff as existing a month or more later.
I am, therefore, of opinion that the judgment should be affirmed.
[Rote.—The foregoing opinion was delivered at the July Term, 1870, but for some reason was not reported. It is referred to as authority in the case of Conroy v. Duane, decided at the April Term,,1873.—Reporter.]