Morris v. Turley

CRAIG, J.

In 1923 the parties to this action constructed a division fence between their adjoining residence properties, of which they were in actual peaceable possession until and including January 21, 1925. On the date last mentioned four or five men employed by the appellant entered respondents’ premises and removed said fence,

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and in so doing broke and removed a portion- of a concrete walk, and cut off and removed part of a composition arch which formed a portion of respondents’ house. Although disputed by the parties, it was alleged by the plaintiffs, and the trial court found, that in rebuilding the fence the defendant deprived plaintiffs of a portion of their property. This proceeding was thereafter instituted against the defendant under subdivision 1 of section 1159 and subdivision 1 of section 1160 of the Code of Civil Procedure, alleging forcible entry and forcible detainer. Judgment was rendered in favor of the plaintiffs, and the defendant appeals.

The portion of said sections relied upon by the plaintiffs provide, respectively, that:

“Every person is guilty of a forcible entry who either—■

“1. By brealdng open doors, windows, or other parts of a house, or by any kind of violence or circumstances of terror enters upon or into any real property; . . .

“Every person is guilty of forcible detainer who either—

“1. By force, or by menace and threats of violence, unlawfully holds and keeps possession of any real property, whether the same was acquired peaceably or otherwise; ...”

Appellant insists that the evidence presented did not justify a finding of forcible entry, or forcible detainer.

The findings of the trial court recite that “while the plaintiffs were so in possession of said land and premises, the defendant, with violence and a strong hand, and by the assistance of four or five men, entered upon the property in the possession of the plaintiffs and in a forcible manner removed the above mentioned fence from its then position and rebuilt it upon a new straight line, . . . ; that by the removal of said fence the defendant deprived the plaintiffs of, and the defendant did herself take, the possession of a wedge-shaped strip of land, having as its apex the point constituting the northwesterly comer of the above described lot . . . ; and that the defendant in the same manner and at the same time removed a portion of plaintiffs’ building, and caused other portions of the said walk to be cracked and broken, and scattered debris over plaintiffs’ lawn, impairing the appearance of plaintiffs’ premises; and at the same time and in the same manner