Lyon v. Fairbank

Cole, C. J. We think the nonsuit in this case was clearly right. In granting the motion the learned' circuit judge made some remarks in regard to the title of the premises in controversy which express our views upon the subject — 461 — very clearly. The judge, in substance, said that tbe patent originally granted to Wadsworth & Dyer conveyed the whole of this parcel of land, including the piece or point in dispute, to the patentees; that, though the patent describes the land as “ lot 1, section 6,” yet the map which accompanied the patent showed that lot 1 extended to Lake Geneva. The proofs made, together with the maps, surveys, and field-notes, including the records from the general land office, conclusively establish the fact that lot 1, section 6, included the point, though, if the line between section 6 and 7 were continued, it would cut off the point. But the records themselves conclusively prove that the whole tract to the lake passed by the patent to Wadsworth & Dyer, and the ownership thereof has become vested in the defendants Fairbanh and Meatyard by mesne conveyances. There can be no doubt but this view is correct, and it is impossible, upon the evidence, to adopt any other. - All the testimony tends to show that the piece in dispute was intended to be included, and was in fact embraced, in the tract which was sold by the general government to Wads-worth & Dyer in 1839; and it would be a waste of time to attempt to make more plain a fact which is so clearly manifest from a mere inspection of the plats and public records themselves. Consequently nothing could be more appropriate to the case than the language used by the register and receiver of the Menasha land office on the application of Mr. Lyon to enter this piece,— that the field-notes and records in the office show that the tract was included in lot 1, section 6, both in the survey and the sale of that lot. This fact we deem so clearly and conclusively established by all the testimony bearing upon the question that we shall assume it as a verity in the case. Shufeldt v. Spaulding, 37 Wis. 662; Whitney v. Detroit L. Co. 78 Wis. 240. In the answer, the defendants Fairbanh and Meatya/rd — 462 — justify their acts on the ground that they owned and occupied the disputed piece, it being a part of lot 1; and that the plaintiff unlawfully and wrongfully entered upon the same, and toi’tiously placed and built some structures thereon, which interfered with their possession and enjoyment of the premises; and that the defendants, without any unnecessary force, removed such structures from their land. Now, the question is, does not this show a good justification, if the acts complained of are sustained by the proof? The defendants were the owners of the land, entitled to the possession, and, in fact, having the possession; and they find an intruder has'entered upon it, and wrongfully erected a structure thereon. Have they not the right, under the circumstances, to remove the trespasser and his structure, if they could do so without a breach of the peace? The proposition seems to us too plain for argument. We cannot see how it can with reason be claimed that the owner cannot use sufficient force to remove the wrong-doer and. defend his possession against a mere trespasser, providing no breach of the peace is committed. It is said, the owner should resort to his legal remedy for redress; that is to say, if a man leaves his residence with his family for a temporary period, and, on returning, finds that some intruder has entered on his grounds, erected a shanty before his door, and is living there, the position is that such owner cannot order the trespasser away, and put his shanty in the streets, with the other portable articles, using such force as may be necessary for the purpose, but must bring an action at law to oust the intruder. If there is any authority to sustain such an absurd position we certainly decline to follow it. It is said the law will not allow any one to break the peace, and redress his private wrongs by force. He may use force to defend his lawful possession, but, being dispossessed, he has no right to recover possession by force and by a breach of the peace. Rut if he can remove the — 463 — intruder and regain the possession without the use of such violence as amounts to a breach of the peace, can he not do so? In the case at bar the circuit judge well observed that the first person making an unlawful entry or trespass on the land in dispute ivas the plaintiff himself' and it is insisted by his ingenious and able counsel that the defendants acted illegally in removing the structures which had been erected, and should have waited for the slow process of a court of law. "We are unable to concur in that view. We adopt the remarks of ERle, C. J., as employed by him in Blades v. Higgs, 10 C. B. (N. S.), 720, where he says: “ It has been decided that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. In respect of land, as well as chattels, the wrong-doers have argued that they ought to be allowed to keep what they are wrongfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was-justified.” See Newton v. Harland, 1 Man. & G. 644, 1 Scott, N. R. 474. But in respect of land that argument has been overruled in Harvey v. Brydges, 14 Mees. & W. 442. Parke, B., says: “Where a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though in so doing a breach of the peace was committed.” These remarks of the English judges, which are in harmony with the views expressed in many cases in this — 464 — country,cited on the briefs of defendants’ counsel, fully dispose of the main contention of tbe plaintiff. The answer was amply sustained by the proof in the case, and there was no unnecessary violence used nor breach of the peace committed in removing the structures. Everything that was done to 'remove these unlawful obstructions seems to have been done as quietly and peaceably as the calm summer morning on which it occurred. The defendants did not enter and take possession of their own premises with a strong hand and multitude of people, so as to cause terror or alarm to any one. If they had done so, they might have been liable on information for their criminal act, but would not be liable to the plaintiff in this action of quare clausum. Prof. Washburn says the law, as generally adopted in the United States, “ may be assumed to be substantially as laid down by Baron Pabee. If the owner of land wrongfully held by another enter and expel the occupant, but makes use of no more force than is reasonably necessary to accomplish this end, he will not be liable to an action of trespass qua/re clausum, nor for assault and battery, nor for injury to the occupant’s goods, although, in order to effect such expulsion and removal, it becomes necessai-y to use so much force and violence as to subject him to indictment at common laAv for a breach of the peace, or, under the statute, for making forcible entry.” 1 Washb. Real Prop. (5th ed.) *397. The text of the learned author is fully sustained by the cases referred to in note 1. But it is said, the question of title to real estate cannot be raised and tried in an action of trespass; but it surely is done in various ways where the right. of title to property is put in issue by the pleadings. See Warner v. Fountain, 28 Wis. 405; Stephenson v. Wilson, 37 Wis. 482. Ordinarily actual possession is sufficient to sustain the action of trespass to real estate. But here, the possession being in dispute, the parties saw fit to put in issue the title to the — 465 — land. Tbe question of title has been fully tried, and found to be in tbe defendant Fairbanlc. That is sufficient to dispose of tbe case. It is not necessary to consider tbe law applicable to tbe action of forcible entry and detainer, because tbis is not sucb an action. Tbis, as bas been said, is an action qua/re dcmsvm, and tbe defendants relied upon their legal title and possession to justify tbeir acts. We perceive no reversible error in tbe case, and tbe judgment of tbe circuit court is affirmed. By the Court.—Judgment affirmed.