Preston v. Kehoe

Terry, C. J., delivered the opinion of the Court Baldwin, J., concurring.

The evidence disclosed by the record is not sufficient to sustain the judgment.

It appears that about the first of June, 1857, plaintiff was in possession of certain land, to enclose which he had begun the construction of a fence; that defendants entered on the land within the contemplated enclosure, and built a house and corral, which house has never been occupied. That afterwards plaintiff proceeded to finish his fence, and that his possession had not been disturbed by defendants, or either of them, from the time when the house and corral were finished until the institution of this action, which was in September, 1857.

Under these circumstances, the action of forcible entry can not be maintained. Plaintiff's remedy for the injury complained of is in another form of action, and before a different tribunal.

Judgment reversed.