Frazier v. Hanlon

Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

This was an action brought by the respondents against the appellants before a Justice of the Peace in and for the County of San Francisco, charging the defendant with making “forcible and unlawful entry upon, and unlawfully and forcibly detaining’’ fifty-vara lot, No. 809, in the city of San Francisco.

It appears by the record, that the respondents claimed the lot in question, and fenced the same in, and that the lot remained in that condition without further improvements for some time afterwards; that [157]subsequently one Gauley, iu a peaceable manner, entered, and erected a division fence upon the lot, without interference from any one, and that the same was standing for two weeks afterwards; that subsequently, Hanlon went upon the portion of the lot fenced off by Gauley, in a quiet and peaceable manner, without violence, threats, or multitude of men, and having quiet possession of that portion of the lot, proceeded to erect a dwelling house upon the same. Before the completion of his dwelling, one Ewing, an agent of the plaintiffs below, called upon Hanlon, and “ told him that they would have to send some men to move the house,” and that Hanlon replied, “ there were not men enough in San Francisco to do it,’’ and said that he would not give up the lot he was on—that he had bought it. Subsequently, Hanlon proceeded to finish his dwelling peaceably and without interruption, and moved his family into it. This is the important portion of the testimony. To sustain the action of forcible entry, or forcible and unlawful detainer, actual force, threats, or violence in the entry, or the just apprehension of violence to the person, must be shown to have existed, unless the detainer be riotous. To constitute a forcible entry, the following rule is laid down in Tomlinson’s Law Dictionary, which has been referred to in most of the Courts of the different States of the Union, “ A forcible entry is only such an entry as is made with a strong hand, with unusual weapons, an unusual number of servants or attendants, or with menace of life or limb; for an entry which only amounts in law to trespass is not within the statute.”

The same view is taken in Williams v. Warren, 17 Wendell, 257, in which Judge Co wen says, after reviewing several American cases, “ The "result seems to be, that there must be something of personal violence, or a tendency to, or threat of, personal violence, unless the entry or detainer is riotous.” In all cases, there must be something beyond a mere trespass upon the property. From violence and force used after . entry, a jury might infer a forcible entry, and from threats, menaces, and violence after entry, a forcible detainer would be inferred. In this case, there is no force, violence, or sufficient menace used by the defendant, to justify either conclusion, that the entry or detainer was forcible and unlawful.