21 Or. 541 | Or. | 1892
This is an action of forcible entry and detainer. For the purposes of this appeal, a sufficient statement of facts is, that prior to the tenth day of October, 1890, defendant was in the possession of the disputed premises, as a tenant of plaintiff under a contract of leasing, which by its terms expired on the tenth day of October, 1890, as found by the jury. After the expiration of the lease, defendant refused upon demand to quit and surrender possession' of the premises to plaintiff; who thereupon sought the advice of counsel, and under their instruction, during the temporary absence of defendant, for the day, leaving no one in possession of the premises, and without having given a written notice to quit, about 9 o’clock in the morning of December 19,1890, entered and took possession of the dwelling-house thereon, by forcing open the outer door, which had been fastened by defendant, and in a careful manner removed defendant’s goods and stored then in an out-building and moved his own househould goods and family into the house, and at the same time sent word to defendant that he could have a reasonable time in which to come upon the premises for the purpose of removing his goods and stock therefrom.
When defendant returned in the evening, he was refused admission to said dwelling-house by plaintiff. Late in the evening of the succeeding day he caused plaintiff, his wife and brother-in-law, who were occupying the house, to be arrested for trespass, and while they were under arrest, accompanied by his father-in-law, two brothers and one Zumwalt, he proceeded to said dwelling-house, forced open the door'thereof, and with force and violence, ejected therefrom plaintiff’s mother-in-law and little son, who had been left in charge by plaintiff, and took possession and has ever since continued to hold the same. Whereupon plaintiff commenced this action, which resulting in his favor, defendant appeals.
Before proceeding to the consideration of the principal question in this case, it is proper and important to ascertain the relation of the parties to each other and to the disputed premises at the time of plaintiff’s entry. From the verdict of the jury we must assume that the lease under which defendant went into possession had by its own terms expired on October 10,1890. In such case the tenancy terminated immediately without any notice to quit because both parties were fully apprised by the terms of their agreement of the end of the lease.
The defendant, by remaining in possession, or holding over, as it is called, instead of quitting and surrendering up possession, as he ought to have done, was a wrong-doer, and could be so treated by plaintiff, the landlord. (Sedg. & W. Trial Land Title, § 378; Overdeer v. Lewis, 1 W. & Serg. 90; 37 Am. Dec. 440; Secor v. Pestana, 37 Ill. 525; Schuyler v. Smith, 51 N. Y. 309; 10 Am. Rep. 609; Den v. Adams, 12 N. J. L. 99.) In such case the landlord being the owner and entitled to the immediate possession
“To hold otherwise,” says Gray, G. J., “would enable a person occupying land utterly without right to keep out the lawful owner until the end of a suit by the latter to recover the possession to which he is legally entitled.” (Low v. Elwell, 121 Mass. 313; 23 Am. Rep. 272; 2 Woodfall L. & T. 741, note; 2 Taylor L. & T. § 532; Fuhr v. Dean, 26 Mo. 116; 69 Am. Dec. 484; Ft. Dearborn L. v. Klein, 115 Ill. 117; 56 Am. Rep. 133; Turner vs. Meymott, 8 E. C. L. 450.)
If he enter in a peaceable and orderly manner, even while another is in possession, he commits no wrong at all, as he has a lawful right to do so, and his entry in contemplation of law restores him to complete possession. (Cooley Torts, 323.) But if he forcibly enter and expel the tenant, while he may not be liable to him in an action of tort, he is guilty of a violation of the forcible entry and detainer act, which is designed to protect the public peace; and in such case the law will award restitution to the tenant, not
By section 3509, Hill’s Code, it is provided that “No person shall enter upon any land, tenement, or other real property but in cases where entry is given by law; and in such cases the entry shall not be made with force, but only in a peaceable manner.” Now we have already stated that an entry was given by law to plaintiff, and therefore, under this section, the only restriction on his right to exercise it was that it should not be made with force. If his entry were a peaceable one it was lawful; but if made with force it was unlawful, and he did not acquire such a possession as will enable him to maintain this action.
As to when an entry is made with force, within the meaning of this statute, there is much apparent conflict in the authorities; but the divergence of views sometimes expressed is doubtless in part owing to the different phraseology of the statutes under which the cases have arisen, and the conflict is more apparent than real. It is agreed that the object of the statute is not to punish for a mere trespass upon land. In substance, our statute is the same as the original forcible entry and detainer act of 5 Richard II, after which the statutes in most of the states are modeled; the words “not with force,” and “not with strong hand or with a multitude of people,” in substance meaning the same thing. The proceedings under the statute were originally in their nature criminal for the redress of a wrong to the public done by a breach of the peace. It was not designed or intended to confer rights. While, through gradual addi*
In actions under the statute there must still be present, to secure conviction, proof of some wrong done to the public. The process was originally what the expression (taking the word forcibly in its technical meaning) meant — a process for the recovery of lands entered or detained by such force as to constitute a breach of the peace. It “was authorized only where the entry or holding was by force or violence, or threats of violence sufficient to deter the owner from entering.” (Kent, J., in Dunning v. Finson, 46 Me. 550.)
The word force when used in the statute means actual force as contradistinguished from implied force, and so it has always been held under the statute of 5 Richard II and similar statutes, not only in England but by the weight oí authority in this country. (See note, Evill v. Conwell, 2 Blackf. 133; 18 Am. D. 138.) As a general rule, it may be stated that to render an entry forcible under the statute of forcible entry and detainer, it “must be accompanied with circumstances tending to excite terror in the owner and to prevent him from maintaining his rights. There must be at least apparent violence, or some unusual weapons, or the parties attended with an unusual number of people; some menaces, or other acts giving reasonable cause to fear that the party making the forcible entry will do some bodily hurt to those in possession if they do not give up the same.” (Comw. v. Shattuck, 4 Cush. 145.) An entry which has no other force than such as is implied in every trespass, is not within the statute. It must be accompanied with some circumstance of terror or violence to the person unless the entry is riotous or tumultuous, and endangers the public peace.
“A forcible entry,” says Tomlinson, “is only such an entry as is made with strong hand, with unusual weapons, an unusual number of servants or attendants, or with menace of life or limb; for an entry which only amounts in law to a trespass is not within the statute.” The same
It is urged by defendant’s counsel that the entry of plaintiff by forcing open the outer door of the dwelling-house was of itself a forcible entry within the statute. Indeed, he must so contend, for all the other acts of plaintiff in making the entry were put to the jury, and by them found to have been peaceable and orderly, but the court told the jury that “opening the door of the house and entering the same, and removing the goods of defendant from the house in a careful and peaceable manner, would not be unlawful force”; and the correctness of this instruction is the controlling question here. This must depend upon the manner in which it was done, and the circumstances of force and violence accompanying it. The entry by the owner, who is entitled to the immediate possession, by the mere act of breaking a door of his own property, during the absence of a wrongful occupant, unaccompanied by any circumstances of force or violence, would in no way tend to a breach of the peace, or come within the evils to be prevented by the statute. If, however, it be done with a multitude of people, or in a riotous or tumultuous manner, or with circumstances of force or terror, or in such a manner as to indicate a determination to take and hold possession by force, threats, intimidation, or violence at all hazards, under some of the authorities hereafter noted, a jury would be warranted in finding the entry forcible; but where none
“ I think it a fair deduction from all the authorities,” says Mr. Justice CowAN, in Williams v. Warren, supra, “that there must be circumstances of force or terror in respect to the person. These may come in a variety of ways. It may be left to the jury on the great number of persons, which is one way to frighten (Dalt. Country Justice, 417 Ch. 126); or, if one person come with weapons or violence or threatenings. And of this a great variety of illustrations is put (Id. 417, 418, et seq.) And the breaking of the dwelling-house in Rolle, I take to be only one illustration, for such naturally inspires terror. And yet if terror were impossible, and great and unusual force were out of the way, or there was none of either which could respect the person, it must stand like a common trespass.”
As a result of the authorities, under statutes like ours, it may be stated that to make any entry forcible, there must be such acts of violence used, or threatened, as give reason to apprehend personal danger in standing in defense of the possession. If there be no more force used than is implied in every trespass, with nothing to excite fear of personal violence, the case is not within the statute; and therefore the forcing open the outer door of the dwelling-house, in a peaceable manner, as stated in the instruction, was not of itself sufficient to constitute a forcible entry within the meaning of the statute. (2 Taylor, Land. & Ten. § 784; 2 Woodfall Land. & Ten. 787, note, 845; Frazer v. Hanlon, 5 Cal. 156; Comw v. Dudley, 10 Mass. 403; Gray v. Finch, 23 Conn. 495; Hendrickson v. Hendrickson, 12 N. J. L. 202; Penn v. Robinson, Add. 14-41; Ft. Dearborn Lodges. Klein, 115 Ill. 177; 56 Am. Rep. 133; Shaw v. Hoffman, 25 Mich. 162; Stearns v. Sampson, 59 Me. 568.)
The dwelling-house was the 'property of plaintiff, to the immediate possession of which he was entitled; and the forcing open the outer door after he had peaceably entered upon the premises, was simply an act of mechanical force
A more particular reference to some of tbe cases will illustrate tbe rule and its application by tbe courts. In Pike v. Witt, 104 Mass. 598, tbe defendants, with a person employed by them as a workman, went to the premises, owned by them, but occupied by plaintiff, tbe doors of which were fastened by an iron clasp and padlock, and demanded tbe key of plaintiff’s servant, who was at the premises at tbe time, tbe plaintiff not being present, and on bis refusal to deliver tbe key, ordered their workman to enter the premises through a hole in tbe floor, and with tbe aid of an ax, which they brought with them, they removed the padlock, entered and kept possession, and it was held that this was not a forcible entry within the meaning of the statute, the court saying the removal of the padlock or bolt “amounted merely to mechanical force, applied against the consent of plaintiff’s agent, but not tending to alarm him or excite apprehension of bodily harm.”
And again, in Wood v. Phillips, 43 N. Y. 152, the plaintiff and defendant were tenants in common of certain real estate, which was in the exclusive possession of defendant. On demand made by plaintiff, the defendant refused to give her possession, whereupon she got into the house through the window, when the house was locked up and unoccupied, took off the locks and put them on so as to fasten the doors on the inside. She then commenced to occupy it, stayed there through the day, took her meals there, and received her friends there. On the evening of the same day, the defendant and other persons went to the house,
So in Mussey v. Scott, 32 Vt. 82, the plaintiff having the right of possession of a house occupied by the defendant, while the defendant was temporarily absent for the day only, having fastened the house upon leaving, entered the premises by forcing open the door and placed defendant’s furniture in the street and fastened up the house again and left it. The defendant on returning forced open the door and reentered and occupied the premises. It was held that plaintiff’s entry was the exercise of a legal right in a legal manner, and that he could maintain trespass guare clausum against the defendant for his subsequent entry. The court speaking through BeNNEtt, J., says: “He [defendant] had gone away and left -no one in possession, and the house defacto was vacant at the time the entry was made, and the entry was made by forcing open the door jo the house which the defendant had fastened when he left
And in Todd v. Jackson, 2 Dutch. 525, it was held that where a tenancy has expired, the landlord may take possession of the premises by any means short of personal violence. “I am willing to lay down the law to be,” says the Chancellor on page 532, “that the landlord may take possession by any means short of personal violence; that he may break into the dwelling-house for the purpose, because no one ought to complain of him for such an injury done to his own property; that he may remove the goods which he finds there because they are an unlawful encroachment upon his rights; that once in possession, he may protect that possession, as well against the individual who, in violation of his contract, has attempted to wrong him, as against a stranger who intrudes upon his possession.”
From these and other authorities that might be noted, we think it clear that plaintiff’s entry was not forcible within the meaning of the statute. He had the title and right to the immediate possession, and as against him the defendant did not even have the right of occupancy. He entered in a quiet and peaceable manner in the day-time, without force or violence, and without in any way tending to a breach of the peace, and having so entered, he could force the door open if he chose and no one could complain, certainly if it were not done in a riotous or tumultuous manner.
We have not disregarded or overlooked the cases to which
Another class of cases cited, such as Chiles v. Stephens, 3 A. K. Marsh. 340, and Brumfield v. Reynolds, 4 Bibb, 388, which seem to have been followed in Davidson v. Phillips, 9 Yerg. 92;30 Am. D. 393; Krevet v. Meyer, 24 Mo. 107, and Greeley v. Spratt, 19 Fla. 644, were made under statutes, which by an extension of the provisions of the original statutes of forcible entry and detainer, have forbidden peaceable entries, if against the will of the occupants, and under which restitution will be granted, even to a wrongful occupant, as against an owner entitled to possession, though the latter use no actual force in gaining the possession. (2 Woodfall Land & Ten. 787.) These authorities can have no application under our statute, which only forbids an entry with force, and authorizes one made in a peaceable manner.
Mason v. Powell, 38 N. J. L. 576, was decided under a statute providing that any entry “ with force or strong hand, or with weapons, or by breaking open the doors, windows, or other parts of a house, whether any person be in it or not,” is a forcible entry, and therefore is not in point here. What was said by the Chief Justice about the rule at common law was unnecessary to the decision of the case, and its correctness has been questioned. See Mr. Justice Cowan’s opinion, in Williams v. Warren, supra.
The case of Allen v. Tobias, 77 Ill. 169, holding that the breaking down and destroying a fence enclosing a vacant
The length this opinion has already attained forbids a particular notice of the other authorities cited, but we have carefully examined each of them and think they are not in point here. The argument that plaintiff cannot maintain an action of forcible entry and detainer, without first giving the notice to quit provided in section 3519, Hill's Code, overlooks the fact that this action is not founded on the constructive force mentioned in the statute, but upon actual force in expelling plaintiff from the possession of the premises acquired in a peaceable and lawful manner.
The judgment is affirmed.