But the court refused these and other like instructions prepared by the defendant, and the decision of the court on the instructions is the principal, and, indeed, the only, question of any importance presented by the record.
Our present statute provides, " that no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner." Rev. Stat. chap. 57, § 1. The first section of the act of 1845, entitled "Forcible Entry and Detainer," declared: "If any person shall make an entry into any lands, tenements or other possessions, except in case where entry is given by law, or shall make any such entry by force, . . . such person shall be adjudged guilty of a forcible entry and detainer," etc. It will be observed that the two statutes are substantially alike, and hence any decision of the court rendered under the statute of 1845 is applicable under the present statute.
As early as 1837, in Atkinson v. Lester, 1 Scam. 407, it was held: 'To constitute a forcible entry and detainer, under the statute, it is not necessary that actual force and physical violence should be used." The same doctrine was announced in Croff v. Ballinger, 18 111. 202. The court said: "To constitute forcible entry and detainer, under our statute, it is not essential that the entry be made with strong hand or be accompanied with acts of actual force or violence, either against person or property. If one enters into the possessions of another against the will of him whose possession is invaded, however quietly he may do so, the entry is forcible, in legal contemplation. The word 'force,' in our statute, means no more than the term vi et armis does at common law, - that is, with either actual or implied force." In Smith v. Hoag, 45 111. 250, the same question arose. It was there insisted the entry was not forcible, because Scott, the landlord of the appellant, was the owner and had the right to enter; that the owner may use all necessary force to make an entry unless he commits a breach of the peace. But the court held that under our statute of Forcible Entry and Detainer actual violence amounting to a breach of the peace is not necessary in any case. In Reeder v. Purdy, 41 111. 279, in passing upon the statute, the court held that any entry is forcible, within the meaning of the law, that is made against the will of the occupant.
From the authorities it is plain, under our statute, although Phelps did not use force amounting to a breach of the peace, he is liable under this form of action. Randolph, on going to Chicago on business, left the pasture and his stock in the care of George Bermal, his servant. At seven o'clock in the morning, in the absence of both Randolph and his agent, Phelps, with a force of seven men, went to the premises, and, without the knowledge or consent of Randolph or his agent, entered the premises, drove out Randolph's stock and removed all of his property, and took possession of the pasture and fastened the gates, and upon Randolph's return refused to permit him to enter upon the premises. In Wilder v. House, 48 111. 279, where the landlord entered upon leased premises in the absence of the tenant and removed his goods, it was held that such an entry was unlawful, and the landlord was liable in an action for trespass. So in Chapman v. Cawrey, 50 111. 513, it was held, although a tenant may be holding over, yet if, during his temporary absence from the premises, the entrance is closed against him, he has the right to remove the obstruction by force and re-enter, and is not liable for a criminal prosecution for so doing. In Doty v. Burdick, 83 111. 473, it was held, to maintain forcible entry and detainer actual or constructive force only is necessary. It was also held that the landlord has no right to employ force and violence to regain possession, although the adverse possession may be wrongful.
Much reliance is, however, placed in Fort Dearborn Lodge v. Klein, 115 111. 190. There may be expressions in the opinion in that case which might be construed as favoring the position of appellant; but that was an action of trespass where title to the premises involved was in issue, and it was held that the plea of liberum tenement urn was a good plea in the action. In an action of forcible entry and detainer the question of title does not arise, and cannot be considered, as has been held by this court in numerous cases. What was said in that case in regard to our statute of Forcible Entry and Detainer was obiter dictum, as the statute was not involved in the case.
If Randolph's term had expired, which the evidence tends to show it had, Phelps had a complete remedy in an action of forcible detainer, or ejectment, to regain possession of the premises, but he had no right to take the law in his own hands and take possessiou by force. No breach of the peace was committed, but the entry was a forcible one, - one which the statute forbids. Where a person is in possession of a tract of land, cultivating it or using it for pasture, but not residing upon it, he is entitled to the same protection as against an intruder, as he would be if he resided upon the land. His absence from the land is not a license or invitation for any one to enter, and an entry in the absence of the party in possession, against his will, may be regarded as forcible, and in violation of the statute.
The instructions of the court substantially conformed to the law as indicated, and we regard them correct.1
1 For the New York Statute see Code Civ. Proc, § 2233; N. Y. Penal Code, §§ 465 - .467. - Ed.
2. The Essentials of an Adverse Possession.
a. The possession must be actual and exclusive.
Shiras, J., in
150 United States, 597. - 1893.
No state statute has been referred to as regulating or defining title by adverse possession, and, indeed, it is stated in the brief of defendant in error that there is no such statute; but there is a statutory provision that an action for the recovery of the title or possession of lands, tenements, or hereditaments can only be brought within ten years after the cause of such action shall have accrued.