Steinlein v. Halstead

42 Wis. 422 | Wis. | 1877

Cole, J.

We think the learned circuit judge erred in granting the nonsuit. It appeared from the evidence that the plaintiff had been in the peaceable possession of the dwelling and the west half of lot 10 for more than a year and a half, when the defendant entered upon the premises by tearing down the fence and moving a building onto that part of the lot. The manner in which this entry was made, is disclosed in the evidence. The plaintiff, in substance, testified that, when informed by his daughter, about five o’clock in the afternoon, that somebody had moved a large carpenter shop close to the house, he went to see about it; that he found no one in the shop, but a crowd around there; that he went the next morning to see who occupied the shop; that he found the fence all torn down as far as the building occupied the lot, and a parcel over on which the boards were chopped with an ax and nailed to the building. Other witnesses who saw the transaction say there were six or eight men engaged in this work of tearing down the fence and moving the building. The witness Schwab, who was near and saw what was done, says that they took down the fence in a hurry, and moved the building from the street onto the lot “ as fast as I ever saw a building of that size moved;” that “they drove their horse like blazes.” At this time the ¡plaintiff’s daughter was temporarily absent from the house, so that no personal violence or intimidation could be or was used towards her or any other party. But still the jury might well have found, from the above testimony, that the entry on the part of the defendant was violent, made with the determination to take possession forcibly and with strong hand. If so, it would have constituted a forcible entry within the statute. In Jarvis v. Hamilton, 16 Wis., 575; S. C., 19 id., 188; Ainsworth v. Barry, 35 id., 136, it was held that an entry by force into a building, without any violence used or offered, to any person, was forcible, within the statute.

Now in regard to the detainer. The plaintiff testified as follows: “ I went into the building, and found the defendant to be owner of the building, and occupier. I told him he had taken unlawful possession here, and I wanted him to remove without delay. He said he would not remove unless he was forced to do so by law; that nobody could get him away without he was forced to go by law; he had two or three men working in the shop.” We fully agree with the counsel for the plaintiff, that this language faiidy imported that the defendant would resist by force all attempts, except through legal process, to remove him from the possession. He was there in the shop, which of course covered a portion of the lot, with two or three workmen, having certainly the present ability, and doubtless entertaining the purpose, to retain that possession to the extent of his power, should efforts be made to dispossess him otherwise than by legal process. Under these circumstances, the plaintiff was not bound to persevere in his attempt to regain possession by violently expelling the defendant if he could. This would inevitably lead to a breach of the peace, which it was not necessary he should commit before his remedy would be complete under, this statute. “ On this subject the law is, that the same circumstances of violence or terror which will make an entry forcible, will make a detainer forcible, also; and whoever keeps in the house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor if he dare return, shall be adjudged guilty of a forcible detainer, though no attempt be made to reenter.” Savage, O. J., in The People v. Rickert, 8 Cow., 226-232.

It is insisted that the nonsuit is sustained by the decision in Carter v. Van Dorn, 36 Wis., 289. But an examination of the facts in that case will show that the case there presented was quite unlike the one at bar. The testimony is commented on by Mr. Justice Lyost, who says it showed that the entry of the defendant into the inclosure was peaceable, and failed to prove that the premises were detained by force. We are clear that the result of the testimony in the case was fairly stated in the opinion, and it is apparent that the case is distinguishable from the one under consideration.

By the Court. — The judgment of the circuit court i@ re- - versed, and a new trial ordered.