Wells v. Darby , 13 Mont. 504 ( 1893 )

Pemberton, C. J.

This is an action of forcible entry and detainer.

In the trial of the cause in the court below, at the close of the testimony on the part of plainliffj the defendant moved for a nonsuit on the ground “that the said plaintiff lias.failed to prove a sufficient cause to entitle him to a judgment herein, inasmuch as he has failed to prove a forcible or unlawful entry of the premises in question.”

The court sustained the motion, and entered judgment in favor of defendant for costs. From this action of the court this appeal is prosecuted.

'ihe evidence in the case is substantially as follows:

Plaintiff had been in possession of the premises (the title to which seems to be in dispute) since 1878, having built houses, fences, stables, etc., thereon, and occupied the same until the twenty-seventh day of April, 1892, when he found the defendant in possession of the same; that he found his furniture moved out and stored in an outhouse, and that the defendant and his family forbade him to further occupy or use the premises; that William Crosswright was plaintiff’s hired man in possession of the premises on the twenty-seventh day of April, 1892. William Crosswright, as the agent and hired man of plaintiff, was in possession of the premises on the twenty-seventh day of April, 1892, when the defendant came and, after showing some papers, demanded possession of the premises of Crosswright. Crosswright declined to surrender the possession thereof until he could see the plaintiff. The defendant theu said to witness that he would have him arrested in two hours if he did not give up possession. Witness says he would not have given up the possession but for the threat to have him arrested until he had seen and informed plaintiff. Witness says he gave up the premises on account of said threat; that he did not want to get mixed up in the matter; that it was not his fight; that under these circumstances he left the premises, surrendering the possession thereof to defendant.

Our statute, section 716, first division, Code of Civil Procedure, defining forcible entry and detainer, is as follows:

“Sec. 716. No person or persons shall hereinafter make any entry into lands, tenements, or other possessions, or by entering upon any gulch, mining claim, or quartz lode mining claim, or other mining claim, in the temporary absence of the party or parties in possession, or by entering peaceably and the turning out by force, or frightening by threats, or other,/ circumstances of terror, the party or parties out of possession, and detain and hold the same. In every such case the person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this act.”

Did the acts and language of defendant tend to prove a forcible entry and detainer under this statute? Were the language and acts of defendant toward Crosswright calculated to frighten him or place him in terror? If so, was it by the use of such means that the defendant obtained the possession of the premises? If so, the defendant was guilty of such acts as are denounced by the statute as constituting a forcible entry and detainer.

In Sheehy v. Flaherty, 8 Mont. 365, the court says: “We are not to be understood as declaring that there must be actual physical force, or an actual or threatened breach of the peace, in order to make an entry made in the presence of one in possession a forcible entry.”

We think the evidence tends to prove that the defendant entered upon the premises and took possession “without the consent and against the will of the party in possession.” The witness, Crosswright, swears that he would not have given up the possession but for the threat of defendant to have him arrested in two hours.

We think the evidence tends to show that defendant’s entry upon the premises in question was unauthorized. In Febes v. Tiernan, 1 Mont. 179, the court, speaking through Mr. Justice Knowles, say: “The unauthorized entry upon the premises of another isa trespass. When such a state of facts is established, the law implies that the entry was done with force, and it is not necessary to offer any further evidence upon that point.”

We think the evidence tends to show that the defendant’s entry upon the premises in question was unauthorized; that he turned out of possession the party in possession by threats, and placing him in terror of arrest, and thereby obtained possession.

If the evidence tended to prove these facts, it tended to establish the allegations of the complaint. In determining the motion for nonsuit, the court should have deemed proved whatever material allegations the evidence tended to prove. We think the court erred in sustaining the motion for nonsuit.

The judgment is therefore reversed.

Reversed.

Harwood and Db Witt, JJ., concur.