Ely v. Yore

McKee, J. The appeal in this case is from an order denying a motion for a new trial, and from judgment which awarded to the plaintiff restitution of a tract of land described in the complaint' in the action, three hundred dollars damages for a forcible entry on the land, and costs of suit.

The judgment was given upon evidence which proved that on the 16th of August, 1886, plaintiff and defend[131]ant were coterminous occupiers of separate tracts of land —plaintiff being in the actual and peaceable possession of his tract, which was inclosed on all sides by a substantial fence, and the defendant in the actual possession of the land contiguous to the southern fence line of the plaintiff’s land.

Each of the parties being thus in possession of his land, the defendant after nightfall of the said 16th of August entered into the plaintiff’s inclosure with several teams of horses and wagons, and a force of nine men whom he employed for the purpose, and broke down and dug up the plaintiff’s fence, which separated the two tracts of land for the distance of about a mile, and carried the materials of the fence back upon the plaintiff’s land for more than thirty rods north of where the fence had been taken up, leaving exposed and open a strip of summer-fallowed land over thirty rods wide.

There appears to have been a dispute between the parties about the right of possession of this strip of land on the southern line of the plaintiff’s in closure; and while the dispute was going on the defendant made his entry upon the land.

At the time of the entry the plaintiff was not present. He resided within his inclosure about two miles away, and had no knowledge of the entry by the defendant, nor of the acts committed by him in making the entry until several days afterwards. When he discovered what had been done he made no attempt to reconstruct the fence upon its original line, and the materials were left as they lay on the ground where the defendant had scattered them.

The defendant and his men worked all night at hauling the fence away. The work was not finished until after sunrise the next morning, when the defendant, with his men and teams, retired from the ground. Personally he did not remain upon the land, but he asserted possession of it as a portion of the tract of which he was [132]