Canavan v. Gray

Sharpstein, J. JOn the 19th day of August, 1875, James Canavan, who was then the husband of the plaintiff, was the lessee and in the possession of the fifty-vara lot on the southeast corner of Third and Brannan Streets, in San Francisco, and was the owner of all the frame buildings thereon; and on that day he assigned said lease and sold said buildings to the defendant, H. W. Gray. On the same day he signed and delivered to said Gray an instrument in writing, of which the following is a copy: “ This is to certify that I have rented four rooms, upper story, southeast corner Third and Brannan Streets, at ($20) twenty dollars per month; and I hereby agree to deliver up possession of the said rooms upon receipt of ten days’ notice, said notice to take effect from 13th day of August, 1875.”

On the 20th of September, 1875, said Gray commenced an action against said James Canavan for the. possession of said premises, and on the 27th of the same month Canavan went away leaving his family, including his wife, the plaintiff herein, in said rooms. He has never occupied said rooms since. But the plaintiff has continued to occupy them without paying any rent for the use and occupation thereof.

On the 5th day of April, 1879, some persons who had been employed by said Gray for that" purpose, unroofed the house containing said rooms, and by so doing, damaged the personal [7]property of the plaintiff herein, and this action was brought to recover the damages which the plaintiff thereby sustained. Upon these and other facts which 'do not change the legal aspect of the case, a verdict was rendered in favor of the plaintiff for $1,000. A motion for a new trial was made by the defendants, and denied by the court, bn condition that the plaintiff should remit $250 of the damages, which she did. The appeal is from that order and the judgment.

The vital question is, Can the plaintiff, upon these facts, maintain an action of trespass against the defendant? Upon that question the cases are conflicting, and we shall not attempt to enumerate them on the one side or the other, but will briefly examine the grounds upon which the opinions pro and con are based.

All agree that at common law the plaintiff could not, upon the facts disclosed by this record, maintain any action whatever against the defendants. It is also conceded that the only change which has been made in the law relating to this subject is that made by the statute which, in this State, as in many others, provides a summary remedy for forcible entry upon or into any real property. It is only as to the extent of the change wrought by this statute that there is any difference of opinion. The insistence on one side is that, “ the statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful it is a trespass, and an action for the trespass must necessarily lie.” (Reeder v. Purdy, 41 Ill. 279.)