Opinion
February Term, 1898.
Judgment affirmed, with costs. All concurred, except Ward, J., who dissented with an opinion.
The respondents, Catharine Finnegan and her children, for many years prior to the 25th of June, 1895, resided in Buffalo, N Y At that time she and two sons, aged nineteen and seventeen respectively, appeared upon the disputed premises, which consisted of four lots inclosed by fences. It is necessary to give abstracts from the testimony of this lady and her two sons (they being the only witnesses who testified in their behalf upon the trial before the magistrate), in order to show the assumed peaceable possession which they claim to have taken of the premises and from which they were forcibly expelled by the appellant. Catharine testified: "After the 23d day of June I came from Buffalo, went up on this farm. On the morning of the 25th of June, 1895, Stephen Burris was not on the farm at that time. He came along with some stock. My sons Michael Burris and Joseph Finnegan were with me. I told him (appellant) I wanted he should stay off, keep his stock off. I also told him if he had anything on the place I would see that he got it, send it to him or hand it to him. He said he would not stay off this place. My son and self posted notices forbidding him to come on the place. He said he would not stay off the place until the law compelled them to. * * * I stood in the road at the east. I was in the 2 lot. I stayed there for a while; left the boys. Two or three days after that I was in the same lot. I tried to stop him. I told him I did not want him to come on that lot. He took the rails from us. Threw the fence down. We made a desperate [attempt] to keep him back. He turned his horses on us. We had to get out of the way or get trampled down. He and his man threw the fence down. He jerked the rails from me and went through the fence. He took hold of the same rail and jerked them from me. He turned the horse toward me and would have run the horse over me if I had not got out of the way. He called me an old devil, and swore, saying that he would run over me or put the horse over us. He drove the horses on the premises out into the road. The horses got away. I did not meet him any more after that. I bought nails, borrowed a hammer and nailed up the gates. They were torn down each time. I posted notices." On her cross-examination she testified: "I came down June 25, 1895. I went there and posted a notice on the farm. * * * I nailed up the gate. I was there on several different days. I went there the next day and walked about. I could not say that I saw defendant that day to speak to him. I think we laid the fences down on that day; let the cows out. We tore down some fence and laid up other fences. We tore down more than one fence. He was there when we tore down some fence. He ordered us off the premises. He or his man laid up some fence and I tore it down again He went on the premises with his team. I saw him hoe potatoes. He opened the gates and went through that other lot. I ordered him off the premises. He ordered me off the premises. He told me he would not go off until he was put off by law. I was there on Friday of that week for the last time. That was the day he had been ploughing in my field. I did not strike him; I stayed perhaps an hour or so. We went down to Pat Mason's. Burris had gone on home. I don't think I went back. Think I went to Canaseraga and from there to my home. I have not been there since. There was grain on said premises. There were oats, barley, wheat or rye, some potatoes, part grass pasture. Defendant cut grass on premises. He lived over on the Lives, on land right across the road. There was a man on the piece." (These references to he, him, etc., refer to the appellant.) Michael Burris testified: "Mother told Stephen (the appellant) she had come to take possession of the place and if he had anything on the place she would send it to him. She told him he would have to stay off the place. He said he would not stay off; she would have to go to law to make him stay off. There were no cattle on these four lots and no one at work there at the time. The first day he crossed there I did not see him. The next day he came there I was alone. I forbid him to come on The next morning I was there I forbid him to come on; had stones and rails against the gate. He threw the stones and rails away, jerked the gate away from me. He said I ought to give you a damn good kick." The witness then proceeds to give the details of the conflict over the possession as stated by the mother, and on his cross-examination he testified that he saw the appellant cutting grass upon the premises. Joseph Finnegan testified about the nailing of the gates by his party and the opening of them by the appellant, and testified that the appellant was hoeing potatoes in one of the fields and on another day he was ploughing and his hired man was hoeing potatoes in the field, and stated the conflicts between the parties as to the possession as the other witnesses had done. The testimony of the appellant and of several disinterested witnesses before the magistrate established beyond controversy that, for five years before the assumed forcible entry and detainer, and up to and including the time when the respondents sought to enter upon the premises and occupy them, the appellant had been and was in the absolute and exclusive possession and control of the premises in dispute, cultivating, pasturing, ploughing and exercising other rights of ownership over the same; that these premises were a part of a farm that he had cultivated and controlled, his residence being across the highway from the premises in dispute; the appellant and his employee were actually hoeing potatoes on these disputed premises and pasturing other portions with his stock, and this was the situation on the 25th of June, 1895, when the mother and her two sons made their descent upon the premises as appears from their testimony; so that we have here the bald case of a man in the peaceable possession of his farm, occupied by his stock and crops, and claimants come along and proceed to take violent if not riotous possession of a portion of his farm, and because he resists them and maintains his possession proceedings are taken against him as a disturber of the peace, and he is charged with and convicted of forcible entry and detainer, which is a criminal act, and the possession of his property turned over in this summary way to the trespassers. Had the position of the parties been reversed before the magistrate, and the appellant had charged the respondents with forcible entry and detainer while they were trying to exclude him from the property, the proceeding might well have been maintained of forcible entry and detainer. On the trial the respondents sought to show title to the premises in themselves by the introduction of a land contract and a deed that were excluded by the magistrate, and properly so, because in such a proceeding the courts have held that the burden was not cast upon the magistrate of examining and determining conflicting titles to real estate. ( The People v. Leonard, 11 Johns. 504; Carter v. New bold, 7 How. Pr. 166.) No one has the right to assert his own title with force and violence against another in peaceable possession under color of title and claim of right. ( Rex v. Wilson, 8 Term Rep. 357-361.) In Porter v. The People (7 How. Pr. 441) Judge Johnson, speaking for the General Term of the seventh district in a case of this character, says: "The questions to be tried are the possession and the forcible character of obtaining or holding it; not the question whether a party actually in peaceable possession and forcibly expelled, had the right to the possession. The very object of the statute was to secure and restore to persons forcibly ejected their peaceable possession until the right should be determined by due course and process of law, and to punish the entry upon such a possession with strong hand and without legal process." And it is well said in Alexander v. Griswold (17 N.Y. Supp. 523), "A forcible entry and detainer is a violent taking, and keeping possession by one of any lands and tenements occupied by another by means of threats, force or arms and without authority of law. It is essentially a proceeding to protect the actual possession of real estate against unlawful and forcible invasion; to remove occasion for actual violence in defending such possession, and to punish breaches of the peace committed in the entry upon or the detainer of real property. (8 Am. Eng. Ency. of Law, 102, and cases there cited.) The only questions to be decided are whether or not the plaintiff was lawfully or peaceably in possession of the premises sought to be recovered, and whether or not the respondents unlawfully entered or forcibly detained the same; neither the right of entry nor the right of possession is involved in the issue." (Citing many cases.) It was not claimed that the respondents had ever been in possession, in fact, of the disputed premises The deed and contract were not, therefore, available to show actual possession, and that was the matter in dispute. The respondents' claim, that their acts, as detailed by their evidence in seeking possession of the premises as against the constant efforts of the appellant to maintain his possession, constituted a peaceable possession which enabled them to treat the appellant as guilty of a forcible entry and detainer, under the circumstances of the case, is absurd. The provisions of the Code of Civil Procedure upon the subject are but a repetition of the common law and the Revised Statutes upon the subject. Section 2245 of the Code provides: "Where the application is founded upon an allegation of forcible entry, or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property at the time of a forcible entry, or in constructive possession at the time of a forcible holding out; and the adverse party must either deny the forcible entry or the forcible holding out, or allege in his defense that he or his ancestor, or those whose interests he claims, had been in quiet possession of the property for three years together next before the alleged forcible entry or detainer, and that his interest is not ended or determined at the time of the trial." Section 2233 of the Code provides: "An entry shall not be made into real property, but in a case where entry is given by law; and in such case only in a peaceable manner, not with strong hand or with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, undertenants and legal representatives, may be removed therefrom as prescribed in this title." The respondents' counsel and the county judge, in affirming the judgment of the magistrate, relied upon Cain v. Flood (14 N.Y. Supp. 776). In that case the plaintiff claimed the right to occupy certain apartments in a building, a portion of which was in his possession, and obtained access to these apartments in the absence of the defendant, but without noise or disturbance, or objection, the means of access being by procuring a key and unlocking the door of the apartments. The defendant returned and resumed forcible possession, and in a violent manner, which it was held the defendant was not authorized to do. This statement shows the essential difference between that case and the one at bar. Here, the respondents never obtained possession peaceably; the appellant was in possession all of the time of the land in controversy; the spasmodic and violent attempts of the respondents to take possession, which they abandoned upon being frustrated by the appellant in maintaining his possession, does not constitute peaceable possession such as was taken in the case last cited. But the Cain case is only authority for the peculiar condition to which it refers, for it was decided long ago, and has never been questioned since, that "If possession is obtained surreptitiously and maintained by force, the entry will be regarded as forcible." (Wood Landl. Ten. 974; citing Burt v. State, Treadw. Const. [S.C.] 489; Botts v. Armstrong, 8 Port. [Ala.] 57.) The respondents have mistaken their remedy. They should have commenced the more deliberate proceeding of ejectment in a court where the rights of the parties could be properly tried and not have attempted, in this violent and tortious manner, to obtain the control of the property in controversy. Such proceedings should not be encouraged, but condemned. The judgment of the County Court and of the justice should be reversed, with costs.