30 W. Va. 27 | W. Va. | 1887
The counsel for the plaintiff in error in their petition for a writ of error do not assign as an error the failure of the court to act on the motion to quash the summons in the case made by the defendant below on October 12,1885, and in stating the case in their brief they say the motion seems to have been forgotten or abandoned, yet they argue, in their brief, that the motion ought to have prevailed, because the land was not described with convenient certainty in the summons; and as an authority to sustain their view they refer to Moore v. Douglass, 14 W. Va. 708, 726. In that case the court held, that after the defendant had pleaded not guilty, and an order of a survey of the land had been made and executed, it was too late for the defendant to make a motion to quash the summons, because the land was not described in it with convenient certainty. Judge Haymond says on page 728, that it was not necessary to make in the summons a minute description of the premises demanded by metes and bounds ; all that is required is, that it should be made with reasonable certainty. In that case Judge Haymond states on page 727, that the description of the land was so loose as to fail to locate it with reasonable certainty; and it is obvious, that it was such a description that i't would be impossible to determine the location of the land. But even in that case Judge Haymond says, that a slight addition to the description would have made it sufficient.
In the case before us the description in the summons, given in full in the statement of the case, is obviously much more minute and definite than is necessary. It seem to me, that, if this description had not been made with convenient certainty, still the defendant could not in this Court under
The argument of the counsel for the plaintiff in error, that the description of the land of which the plaintiff’s witnesses all spoke, did not identify the premises in dispute, of which they spoke as the same land, as that described in the summons, seems to be, if possible, still more groundless. The witness, Donald Franklin, the plaintiff, describes the land, of which he spoke, as about 90 poles described in the paper shown him, which was doubtless the ■ summons; and he says that this land was the land in dispute, which he was then seeking to recover. He could not have identified the land more clearly, if he had stated its metes and bounds, as the summons did. The motion to exclude all the plaintiff’s evidence from the jury was properly overruled by the court below, as will be presently shown.
The two instructions copied into the statement of this case state accurately the law of the case. It is admitted by the counsel of the plaintiff in error, that the first instruction is correct; and they insist, that it should not have been given only because there was no evidence tending to prove, that the defendant below “ entered upon the land in dispute and forcibly turned the plaintiff below out of possession and kept him out of possession up to the time of bringing this suit.” The other instruction is also found fault with by the counsel for the plaintiff in error, only because it contains the following language : “ detained possession of the same at the date of the issuing of the writ in this case,” whereas it should have been “ detained from, theplaintiff possession,” &c. This is a quibble. The instruction clearly meant exactly what the plaintiff in error by his counsel admits to be law.
Could a jury upon the evidence in this case have found a ' ‘ .'
As a demurrer to evidence or a motion to exclude the plaintiff’s evidence withdraws from the jury, the proper triers of facts, the consideration of the evidence by which they are to be ascertained, the party, whose evidence is thus withdrawn from its proper forum, is entitled to have it most benignly interpreted by the substituted court. Schwarzbach v. Pro. Union, 25 W. Va. 642; Miller v. Insurance Co., 8 W. Va. 515. In such cases the law is as stated by Judge Stannard in Ware v. Stevenson, 10 Leigh 164: “In determining the facts inferable from the evidence inferences most favorable to the demurree will be made in cases, in which there is a grave doubt, which of two or more inferences shall be deduced.” And again he says: “ When the question is^ whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurree, I do not know a juster test than would be furnished by the inquiry: Would the Circuit Court set aside the verdict, had the jury on the evidence found the fact? If the verdict so finding the fact would not be set aside, it ought to be considered as established by the evidence demurred to.
Applying this rule, did the defendant below make a forcible entry upon the plaintiff’s .land named in the summons, and did he detain the possession of it from the plaintiff at the time the summons was issued, September 24,1885 ? If so, the evidence below was properly not excluded from the jury. It is admitted by the counsel for the plaintiff in error, that the court below did not err, unless it was in not excluding the plaintiff’s evidence from the jury and in not
A forcible entry, for which under our statute as under the statute of other States the party dispossessed is given civil redress by this summary proceeding, is precisely the same as the forcible entry, for which at common law an indictment would lie. State v. Pollard, 4 Ired Law 305; Butts v. Voorhees, 13 N. J. 13; Commonwealth v. Dudley, 10 Mass. 409. What constitutes such forcible entry is laid down in these and other cases; and they all substantially agree. The Court in State v. Pollard say: “ Where a party entering on land of another by his behavior or speech gives those, who are in possession, just cause to fear, that he will do them bodily harm, if they do not give way to him, his entry is esteemed forcible, whether he caused the terror by taking with him such unusual number of attendants or by arming himself in such manner, as plainly to indicate a design to back his pretentions by force, or by actually threatening to kill, maim or beat those, who continue in possession, or by making use of expressions plainly-implying a purpose of using force against those, who make resistance. As sustaining these views see also Pennsylvania V. Robinson, Add. 14, and Pennsylvania v. Waddell, Id. 41.
In the case before us it was proven, that the plaintiff below had been in the actual use and open possession of the land in dispute for more than twenty years, having it inclosed in his farm, which adjoined the farm of the defendant below. While the plaintiff below was absent from his farm for a single day, the defendant below entered upon it and commenced fencing it, claiming it then for the first time as a part of his farm. The plaintiff below returning home and finding the defendant below so engaged, protested against his fencing off and taking possession of this land; but the defendant paid no attention to his protests but completed his enclosure of the land in dispute. This was on July 20,1885 \ and the next day the defendant hauled off from the land the
The facts are that there was an old frame-house on the land which had been and continued to be unoccupied. The plaintiff below had the key of this house and continued in possession of the key, the defendant not demanding it; and nothing having been said on this subject afterwards by either party, the sons of the plaintiff without any direction from him gathered some apples from some trees growing on this land, some four or five bushels, and put them in this Vacant house, where they remained; and the plaintiff below after these occasions had more than once walked across this piece of land. On the other 'hand the defendant below after these occurrences pulled down and burned up several panels of the old fence, which separated the farms of the two parties and thereby threw this disputed ground •into the same inclosure with 'the small field on the farm of the defendant below .close to his house. The hay-harvest having passed, the defendant had no use for this small field between the time of these occurrences and the institution of this suit, as he put no stock or cattle of any sort on it keeping it for a meadow; but by pulling down this old fence he had thrown it into the same enclosure with the disputed land, which was also a meadow unused after the hay was cut off in the manner before stated. When the case was submitted to the jury on the plaintiff’s evidence, the court at the instance of the defendant below gave the following instructions to the jury and the plaintiff below did not except to them. They, state the law correctly.
defendant’s instruction no. 1.
“ If the jury find from the evidence that defendant, Geho, went upon the land and cut and hauled away grass, and attempted to and did at three several times partly erect a fence, and that after warning from plaintiff to depart he did ■not return, and'abandoned the possession of the premsies in*38 question, and did not detain the possession thereof from the plaintiff on the 24th day of September, 18.85, then you must find for the defendant.”
DEPENDANT’S INSTRUCTION NO. 2.
“ The jury are instructed that no claim of ownership of the property or of intention of the defendant to hold the possession thereof made on or about the 28th day of August next before the bringing of this suit are sufficient to enable the plaintiff to recover, if the jury find from the evidence that the defendant did not in fact withhold the possession of the premises at the date of the commencement of this action, to-wit, on the 24th day of September, 1885; but the jury may take into consideration a claim of ownership made by the defendant and his declarations as to his possession of the same in connection with other evidence in determining whether in fact he was in possession of the premises at the commencement of this action.”
In support of the position, that, what the defendant below did, could not be regarded as an entry upon the land either forcible or unlawful or a detention of the possession of it from the plaintiff below but simply as a .trespass, the counsel for the plaintiff in error relies upon Hays v. Altizer, 24 W. Va. 505. That case is very different from the one before us. There the defendant below had been continuously at least four years, before the suit was brought, in the actual possession of the lot in controversy, and of course in this form of action the plaintiff could not recover the possession, even if she had a right to it. To avoid this, she endeavored to prove, that the defendant’s continued possession had been broken by the plaintiff taking possession of the land, shortly before she brought her action of unlawful entry and detainer. But this Court held, that she failed to prove, that she had thus broken the defendant’s continued possession; but that, what she did, amounted simply to a trespass and not to an entry on the land and a dispossession of the defendant. What she did was to go upon the land and begin to put up some posts for the purpose of enclosing it, and after she had caused four or five panels of fence to be made, the defendant pulled them down, and the plaintiff fffien left defendant in possession and brought her action of
This would be an authority for the plaintiff in error in the case before us, if the plaintiff below had actually pulled down the fence, which the defendant below commenced building on August 28,1885, before he had enclosed the land in dispute, and the defendant below had acquiesced and never completed the fence enclosing the land but had left the plaintiff in the actual possession. If these had been the facts, it would seem to be very clear, that the act of the defendant was simple trespass, but the facts are entirely different. The defendant below completed the fence, which he was building, and which enclosed the land in dispute, and the plaintiff did not pull down an3r part of it, though he desired so to do but refrained from • so doing because of the threats of the defendant. Shortly thereafter and before the institution of this suit the defendant having enclosed this land pulled down several panels of fence between it and a lot on his farm in his possession, so that thereafter his lot, which was in his undisputed possession, was thrown into the same inclosure with the land in dispute. This, it would seem, clearly put the defendant below in possession of the land in dispute ; and as it occurred three or four weeks, before this suit was brought, he must be regarded as having unlawfully certainly, if not forcibly, entered on this land and detained it from the plaintiff below unlawfully. And the simple fact, that after he had inclosed this disputed land with one of his own lots in his undisputed possession, he had put no cattle on his own lot or on this disputed land, and made no actual use of either of them excepting to let the grass grow in them, they being meadow, would certainly not save him from being regarded in law as in possession of all he had so inclosed not only his own but also the disputed land. The subsequent gathering of four or five bushels of apples from trees growing on the disputed land, and the putting of them in the vacant house on said land by the sons of the plaintiff without his direction, was not a re-taking of
It seems to me therefore, that, when the evidence is most benignly interpreted in favor of the plaintiff, as we have seen it must be on the motion to exclude it from the jury, the court could not reach any other conclusion, than that it proved the plaintiff’s case and established, that the defendant below had forcibly or certainly unlawfully entered on-the land of the plaintiff named in the summons and unlawfully detained it from the plaintiff, when this suit was instituted. The jury might of course have taken a different view' of the facts ; but their verdict shows, that they regarded the case of the plaintiff as established to their satisfaction ; and the jury having found a verdict the court ought not to have set it aside and did not err in refusing to do so, unless the verdict was not in proper form, because it simply found, that the defendant unlawfully withholds from the plaintiff the premises described in- the summons, instead of finding, as it is claimed, it should have done to make the verdict such a-one, as the court should have rendered a judgment on, that at the time the summons issued, the defendant unlawfully withheld and still withholds from the plaintiff the premises-described in the summons. It has been expressly held by this Court, that a verdict in the form rendered by the jury in this case in such a suit was not so defective as to make it improper for a court to enter up such a j udgment on- it, as the court did enter for the plaintiff below in this case. Mann v. Bryant, 12 W. Va. 516, 521, 522; Lawson v. Dalton, 18 W. Va. 766.
But if all the positions taken by counsel for the defendant below were sound in law', and their view of the facts were also sound, and it was true, as they argue, that the plaintiff below, who- had had possession of this land for twenty years, was never dispossessed of it by the defendant below, and that all he did was to commit a trespass, we could not reverse the judgment of the court below, unless the summons was fatally defective. For though in such a state of facts
For the reasons, we have given, the judgment of the Cir^
Affirmed.