Simmons v. Thompson

delivered the opinion of the Court.

The only part of the case, to which the charge could properly be applied, was the forcible entry by the defendants into the premises, after they had been vacated by the plaintiff, and removing some rubbish, left there by the plaintiff for the sole purpose of retaining his unlawful possession; in the doing of which no harm was occasioned the plaintiff unless the mere forcibly breaking and entering into the premises, constituted such harm. Upon a careful examination of numerous cases on this subject, both English and American, we have not found one in which it has been held, that a person having the right of possession to land entered upon by another, or kept from him unlawfully by a tenant holding over, might not enter and take possession, using as much force as should be necessary for that purpose; provided that, in so doing, he committed no act amounting to a breach of the peace, or leading directly thereto. And in all cases, where an action has been sustained in favor of the party thus entered upon, either he himself, or some person in his behalf, has been personally in possession of the premises; or his goods have been removed in such manner, as to occasion them special damage; and thus caused the other party to be regarded as a trespasser ab initio. Such is the character of all the cases cited, in argument, by the plaintiff’s counsel. Thus, Hillary vs. Gay, 6 Car. & P. 284, was one where the defendant having decoyed the plaintiff from *524the house, procured a party of Irishmen to enter it, who turned the plaintiff’s wife out of doors, and threw his furniture into the street. Martin and wife vs. Hewland, 1 Man. Gr. 644, was trespass for an assault and battery .upon the plaintiff’s wife, under similar circumstances. Perry vs. Fitzhowe, 55 Eng. C. L. 757, was trespass for pulling down and demolishing the plaintiffs house, when he and his family were in its actual occupancy. The Court holding, that such conduct inevitably tended to a breach of the peace, and that a party ought not to be allowed “to pursue his remedy at such risks.” Rex vs. Wilson, 8 T. R. 360, was an indictment against twelve men for a breach of the peace, in forcibly entering a certain mill, &c., and expelling the procurator. And, Brook vs. Berry, 31 Maine 293, was a case where the plaintiff’s wife was sick in the house, when the defendant entered, and took some of the windows, &c., from the house, after having been forbidden so to do; thereby greatly exposing the person of the plaintiff’s wife. In all these cases, it will be seen, that the conduct of the defendant was such as either amounted to a breach of peace, or inevitably tended to its commission.

On the other hand, in Turner vs. Weymoth, 8 Eng. C. L. 280, the plaintiff was a tenant holding over; after notice to. quit; though not in the personal occupancy of the premises, he had retained them with his furniture under lock and key; the defendant, (his landlord,) broke open the house with a crowbar, and removed the furniture. Held, that trespass would not lie; the Court citing with approbation the case of Taunton vs. Astor, 7 T. R. 421, as in point, to show that under such circumstances, the landlord had a right to enter, and should not be driven to his action. So, in Whitney vs. Smith, 2 *525Foster, (N. H. Rep.) 13, where the plaintiff had left the personal occupancy of the premises, but still kept part of his furniture there, it was held that the defendant, having the right of possession, might enter and' remove the plaintiff’s goods from the premises, “ doing no unnecessary harm; ” but if it should appear that he ivantonly abused the goods, he might be regarded as a trespasser ab initio.

There are several American cases, indeed, going far beyond some of these, in which Courts of the highest authority have held, that a party entitled to the possession of land, might justify an entry upon it, even though his adversary were in its actual possession, and the removal of him, or his goods, should tend to a breach of the peace.

Thus, in New York, Hyatt vs. Wood, 4 Johns. 149, it was held that the owner of land, entitled to its possession, might enter by force, against a wrongdoer, or tenant holding over, and oust him. And though he might be indicted for a breach of the peace, he would not be liable in trespass, “quare clausum.”

So, in Pennsylvania, Overdeer vs. Lewis, 1 Watts & Serg. 90, where’ a, landlord, without previous notice to quit, entered upon his tenant holding over, and ordered him out forthwith; persisting in his demand of immediate possession, although the tenant offered to leave the next day; and commenced removing the tenant’s goods himself, breaking ,and injuring some. The Court said ££ that the landlord had a right to put the tenant out at once; by night or by day; and even from motives of caprice with this limitation however, that he used no greater force than was necessary, and did no wanton damage — since, ££a . tenant at will is bound to remove his property on request, without regard to his own convenience.”

*526And in Massachusetts, Moore and wife vs. Stone, et al. 7 Metc., 147, where the plaintiff Moore was a tenant, holding over his term; during his absence from home, the defendant, (his landlord,) came with others, broke into the house, took off the doors, went to the chamber of the plaintiff’s wife, who was sick in bed, took out a window, as well as the door from its hinges, and let in a current of cold air upon the wife. Chief Justice Shaw, in pronouncing the opinion of the Court, said, (page 157,) “however, such an entry by force might subject the landlord to penalties for a breach of the law, it confers no “right of action on the tenant, thus holding without any “right of possession.” See also, 13 Pick. 39.

It is wholly unnecessary to consider now, whether the Court would be inclined to go 'the full length of the rule laid down in these latter cases; or whether indeed, these cases may not be well reconciled with the others cited, by considering the different forms and purposes of each. Sufficient it is, that they all warrant us in sustaining the rule to the extent laid down by the Judge in his charge to the jury upon the trial at Special Term, and as properly applicable to the facts in proof.

But it seems to be considered by the plaintiff’s counsel that the present is analogous to the case of Perry vs. Fitzhowe ubi sup. where the defendant commenced tearing down the plaintiff’s house, thereby forcing him to leave it; and that the charge of the Court, as applicable to such a case, was erroneous. Although there may be some shades of resemblance, there is a striking difference in fact, between the two cases. There, the defendant went upon the premises in the actual occupany of the* plaintiff, owned by him, (but a small portion thereof being *527upon the land of the defendant,) and commenced tearing them down, whereby the plaintiff, for his own safety, was compelled to move from his own part of the premises. Here the defendants, instead of going upon the premises occupied by the plaintiff, and in part owned by him, went upon those adjoining, which they had a right to remove, and by tearing them down, rendered it, (as was claimed,) so unsafe for the plaintiff to remain in the place unlawfully held ly him, that he was compelled to remove. Now we cannot perceive how the plaintiff could have maintained an action, for an injury to his business and goods, occasioned, not by any direct trespass of the defendants, nor by any nuisance as such, created by them, in demolishing the adjoining premises, but by his removal from a possession, which in law he was bound to make. Nevertheless, if his right of action could be admitted on the latter ground alone, he was not in anywise impeded or hindered by the charge of the Court, excepted to. That charge had reference to the actual entry made by the defendants upon the premises; — an act entirely distinct from, and subsequent to, that by which the plaintiff was compelled to remove; and if the charge did not allude to this, it had no particular bearing upon the case: for this was the only entry proved or complained of on the trial. The tearing down of the adjacent building was no entry upon, nor trespass to, the plaintiff’s possession.

We find no error in the record at Special Term, and therefore the judgment will be affirmed.