Carter v. Van Dorn

Lyon, J. It was held in Winterfield v. Stauss, 24 Wis., 394, and is the law of this state, that the remedy given by the E. S., ch. 151, for the unlawful detainer of lands and .tenements without force, is confined to those cases in which the relation of landlord and tenant exists between the parties, and that no action can be maintained under that statute, where •such relation does not exist, unless the detainer be by force. In this case the entry by the defendant was peaceable, and the relation of landlord and tenant did not exist between the parties. Hence, although it be conceded that the plaintiff had [294] a sufficient previous possession of the premises to entitle him to maintain this action (a proposition, the correctness of which is denied and may well be doubted), and that the entry upon the premises and the detention thereof by the defendant were unlawful, still the plaintiff is not entitled to recover in this action unless he proves that the defendant forcibly detains the premises from him. It follows that, unless the testimony given on the trial tended to prove such forcible detainer of the premises by the defendant, the nonsuit was properly granted. Does the testimony tend to prove such forcible detainer? Manifestly the mere ordering the plaintiff away from the house, and forbidding him to take wood from the premises, does not tend to prove that the defendant employed force to keep possession of the premises. But the defendant did use force to prevent the plaintiff from taking wood therefrom. However, the force thus used failed to accomplish that purpose. It was overcome by the plaintiff, and he carried away the wood. Moreover, it was not used for the purpose of driving the plaintiff from the premises. There is nothing in the testimony tending to show that the defendant used any force whatever to that end. On the contrary, it appears affirmatively that the plaintiff did what he pleased on the premises, and left them voluntarily. We think it must be held, therefore, that there is no testimony tending to show that the defendant detained the premises by force. The statute under which this action was brought is highly penal, and its operation should not be extended to doubtful cases. It certainly should not be used as a substitute for ejectment ; and it seems to us that in this case an attempt is made so to use it. Our conclusion is, that the nonsuit was properly ordered, and that the judgment of the circuit court should be affirmed. By the Court. —Judgment affirmed.