Summary
In Frazier v. Hanlon, 5 Cal. 156, the court said: "Facts which might constitute a mere trespass upon property have never been held to sustain the action of forcible entry, or forcible and unlawful detainer.
Summary of this case from Castro v. TewksburyOpinion
Rehearing Granted 5 Cal. 156 at 158.
Writ of Error from the County Court of San Francisco County.
COUNSEL:
Tayl. on Land. & Tenant, §§ 786, 787; Saunders v. Robinson, 5 Met. 343; Cammack v. Macy , 3 A. K. Marsh. 296; 17 Wend. 261; 2 Ch. Pr. 231; State v. Gordon, 13 Ired. 348; Bell v. Pierce , 11 Ill. 92; Berry v. Williams , 1 N. J. 423; Matlock v. Thompson , 18 Ala. 600; Commonwealth v. Shattuck, 4 Cush. 141.
Crockett & Page, for Appellant, cited
Campbell, Taylor & Beckh, and Wm. W. Shepard, for Respondents, cited
Atkinson v. Lester, 1 Scam. 407; Brumfield v. Reynolds, 4 Bibb, 388; Henry v. Clark, Ibid. 426; Childress v. Black, 9 Yerg. 317; Cought v. Lyle , 4 Ala. 112; Bent v. The State, 3 Brev. 414.
JUDGES: Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
OPINION
BRYAN, Judge
A rehearing was granted the respondents, when, after a reargument of the case, Heydenfeldt, J., at the July term, delivered the following opinion, in which Murray, C. J., and Bryan J., concurred:
This case, after having been decided, was, upon the application of respondents, ordered for reargument, and it has been carefully reconsidered, with a view of settling, definitely, the only question raised,--whether actual violence or force is necessary to be shown in an action under the statute, where the complaint alleges a forcible entry?
The authorities upon this question are various and conflicting, and the rule is often varied by the decisions of the same Court. Our object is to attain a rule which, being sustained by the best reason, shall be uniform and consistent, and which will consequently enable it strictly to be adhered to. The necessity for this is apparent, when we look at the variety and conflict of the decisions of other States. In some, it is held that any entry into the possession of another is a forcible entry; as in the cases of Brumfield v. Reynolds, 4 Bibb, 388; Henry v. Clark, Ibid. 426; Childress v. Black, 4 Yerger, 317; Bent v. The State, 3 Brev. 414; and other cases cited by the respondents.
While in Williams v. Warren, 17 Wendell, 257, and a large number of cases there cited, and others sited by the appellants, the opposite doctrine is ably maintained.
One of the best admitted rules of construction is to give to language the meaning it has in its ordinary and most comprehensive acceptation; and if we are governed by this rule, it would be an absurdity to declare that, when the statute requires force, it does not mean force, or that when there is no force, the act must yet be called forcible.
To my mind, there is no necessity for so objectionable a construction. If the statute otherwise failed to furnish a substantial remedy in cases like the one under consideration, there would be strong ground to argue in favor of the general principle of giving a liberal construction to a remedial statute, although even that might be well answered by invoking the doctrine of strict construction in passing upon a penal statute; for it is penal, as well as remedial.
But we have had occasion to consider the question of remedy once before, and by the conclusion we then attained it is settled that our Act of forcible entry and detainer furnishes a specific remedy in cases where no force has been used, and that consequently it is only necessary to change the form of the allegation in the complaint to entitle the plaintiff to maintain his action.
In the case of Moore & Moore v. Gosling, (p. 266 of this vol.) decided at this term, the opinion says, " Our statute of forcible entries and detainers provides a remedy for an unlawful entry, and the policy of it is doubtless to avoid nice distinctions as to what constitutes force in an entry upon lands."
If, therefore, in the case under review the allegation had been of unlawful entry, the judgment could not be disturbed; but it is a rule too well established to be in any case unsettled, that the allegata and probata must correspond, and it therefore follows that when a forcible entry is alleged, a forcible entry must be proved. We have well considered the case just cited of Moore & Moore v. Goslin, and we are satisfied that by every rule of construction, we have fairly arrived at the intention of the Legislature. The meaning of the language used, the grammatical construction of the paragraphs, the evil to be remedied, and the reason or policy for extending the remedy, all in our judgment concur to satisfy us that we have attained a correct conclusion.
It follows from this review of the case that we adhere to the doctrines announced in our first opinion, and that therefore the judgment must be reversed.
As to degree and character of force required to establish forcible entry or forcible detainer, see, Scarlett v. Lamarque, ante, 63; O'Callaghan v. Booth , 6 Cal. 63;