Wilbur v. Cherry
Before: Sprague
Synopsis
Fobcible Entby and Detainer.—Evidence of Possession. — An actual inclosure of the premises by the plaintiff or those under whom he claims, or other evidence of possession at or within five days of the date of the alleged entry of defendant must be shown in order to maintain an action for forcible or unlawful entry and detainer.
Idem.—There must also be some evidence tending to establish that defendant exercised or threatened force in obtaining or continuing his possession.
Sprague, J., delivered the opinion of the Court.
There is no substantial conflict in the evidence tending to establish the character of plaintiffs’ possession at the date of the alleged forcible entry of defendant. Such evidence clearly establishes that the lands had never been inclosed by plaintiffs, or those under whom they claim, and at or within five days of the date of the alleged entry of defendant, plaintiffs had not such possession of the one hundred and sixty acres entered upon by defendant as would authorize them to maintain an action for forcible or unlawful entry and detainer.
Furthermore, there is an entire absence of evidence tending to establish that defendant exercised or threatened force of any character in obtaining or continuing his possession.
The judgment and order denying a new trial must, therefore, be reversed, and the cause remanded.
So ordered.
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