Buchanan v. Crites

• Decision Date: 03 July 1944
• Docket Number: 6647
• Citation: 150 P.2d 100,106 Utah 428
• Court: Utah Supreme Court
• Parties: BUCHANAN v. CRITES

150 P.2d 100

106 Utah 428

BUCHANAN v. CRITES

No. 6647

Supreme Court of Utah

July 3, 1944

Appeal from District Court, Third District, Salt Lake County; M. J BRONSON, Judge.

Action by George S. Buchanan against Wilford J. Crites for damages for alleged wanton and malicious taking of doors from dwelling unit of which plaintiff was in lawful possession. Judgment for plaintiff, and defendant appeals.

Affirmed.

M BLAINE PETERSON and LEWIS J. WALLACE, both of Ogden, for appellant.

NED WARNOCK, of Salt Lake City, for respondent.

WOLFE Chief Justice. McDONOUGH and WADE, JJ., LARSON, Justice concurring. MOFFAT, J., deceased.

OPINION

WOLFE, Chief Justice.

This is an appeal on the judgment roll from a judgment in favor of the plaintiff, George S. Buchanan, and against the defendant, Wilford J. Crites. The facts as shown by the pleadings are as follows: The plaintiff on December 21, 1942, was in lawful possession of a specifically described dwelling unit. On that date, he and his family temporarily left the dwelling and locked all the doors. In their absence the defendant entered upon the premises and by means of a key opened the doors and removed them from their hinges. He loaded the doors in his car and took them from the premises. During the night the weather was below freezing. The plaintiff alleged that because of the housing shortage he was unable to find a suitable place for himself and his family and was, therefore, forced to reside for twelve days in the dwelling house from which the defendant had taken the doors.

The taking of the doors was alleged to have been wanton and malicious and to have caused the plaintiff great physical discomfort. It is alleged that he was forced to build up the fires in his stoves frequently and at unusual hours.

In answer the defendant admitted the taking of the doors, but countered that he was the owner and entitled to the possession of the premises. In reply the plaintiff admitted that the defendant was entitled to possession. The court instructed the jury that before it could find for the plaintiff he must prove that he was in lawful possession of the dwelling; that the defendant, without plaintiff's consent, removed and carried away the doors; and that the plaintiff was damaged thereby. The court then instructed the jury that as a matter of law, the plaintiff was in actual possession of the premises and that that possession was lawful. The jury found for the plaintiff and court entered judgment upon the verdict. From this judgment the defendant prosecutes this appeal. Since this appeal is brought on the judgment roll there is no transcript of the evidence before us. We are consequently not able to ascertain the exact nature of the tenancy by which the plaintiff held the possession of these premises. On appeal the appellant has the burden of showing wherein the trial court erred. If the record is not sufficient to determine a material question because of the fact that the appellant has failed to bring enough of it before us, the doubts should be resolved in favor of sustaining the judgment. From the record before us it appears that the court instructed the jury that the plaintiff had "lawful" possession of the dwelling unit from which the defendant took the doors. It appears also from the pleadings that the defendant had the right of possession. In view of this latter fact the tenancy could be no more than a tenancy at will. Any higher tenancy would be inconsistent with the defendant's right of possession.

It does not appear that the plaintiff was given notice to quit possession and on this record we must assume that none was given. However, at the common law a tenant at will was not entitled to such notice. Nicholl v. M'Kaeg, 10 Barnewall & Cresswell, 721, 21 Eng. Common Law Reports, 154; Cross v. Campbell, 89 Ill.App. 489; Thompson on Real Property, Vol. 3, p. 24, Sec. 1029.

In view of the fact that the defendant had the right of entry and since he was not required at the common law to give the plaintiff formal notice to quit, it is extremely doubtful that he violated a legally protected right or breached a duty under the common law. Under the ancient common law, one entitled to possession had the right to enter and use such force as was necessary, short of death or serious bodily injury, to regain and hold possession of his land. An early (1381) statute, 5 Richard II, made the use of force in obtaining possession of land a criminal offense. But there was no civil liability. See Harper on Torts, p. 102; Jackson v. Farmer, 9 Wend., N.Y., 201; Overdeer v. Lewis, 1 Watts & Serg. 90, 37 Am. Dec. 440; Kellam v. Janson, 17 Pa. 467; Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442; Sterling v. Warden, 51 N.H. 217, 12 Am. Rep. 80; Walker v. Chanslor, 153 Cal. 118, 94 P. 606, 17 L. R. A., N. S., 455, 126 Am. St. Rep. 61; Meader v. Stone, 7 Metc. Mass., 147; Mugford v. Richardson, 6 Allen, Mass., 76, 83 Am. Dec. 617; Thompson on Real Property, Vol. 3, p. 251; and the notes in 21 Harvard Law Review 295 and 33 Harvard Law Review 733.

So far as the respective rights and duties of these parties under the common law are concerned, it is clear from these authorities that the defendant breached no duty to the plaintiff unless the taking of the doors can be said to have been the use of excessive force. Had the plaintiff been in the house at the time the defendant took the doors, it is a tenable view that the defendant would have had to first request the plaintiff to quit the premises. Perhaps until a simple request has been made, the use of any force might be excessive. It is also tenable that since the plaintiff was not present when the defendant entered upon the premises, he was required to await plaintiff's return so that the request to vacate could be made. But in any event it would appear that under the common law the defendant would not be liable to the plaintiff (a tenant at will) for the total damage occasioned by the plaintiff staying in possession of the house for 12 days after the defendant took the doors. Under the circumstances it could hardly be said that the plaintiff was in possession with the consent of the defendant. It follows that this judgment cannot be sustained solely under principles of the common law. We must, therefore, ascertain wherein and to what extent the common law has been changed by statute.

Most American jurisdictions, including Utah, have enacted Forcible Entry and Detainer Statutes. In states having such statutes the prevailing view is that " a landlord who is entitled to possession must, on the refusal of the tenant to surrender the premises, resort to the remedy given by law to secure it." 45 A. L. R. 313, 316. If the landlord, contrary to the terms of such a statute enters by force without resort to legal process, he is by statute made civilly liable to the dispossessed tenant. We held in Paxton v. Fisher, 86 Utah 408, 45 P.2d 903, 906, that under the Forcible Entry and Detainer Statutes, 104-60-1, ff. U. C. A. 1943: "Even rightful owners should not take the law into their own hands and proceed to recover possession by violence, or by entry in the nighttime, or during the absence of the occupants of any real property."

Section 104-60-1, U. C. A. 1943 provides:

"Every person is guilty of a forcible entry, who either: (1) By breaking open doors, windows or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstance of terror, enters upon or into any real property; or * * *."

By this Act entries, which at the common law were prohibited only by criminal sanctions, have been made tortious and a civil remedy has been prescribed for the benefit of the injured tenant. The statute has created a new right and made any one who violates said right liable in a civil suit.

The courts are not entirely in agreement as to whether one must follow the procedure prescribed by the statute or whether the regular civil action can also be brought. One view is that the procedure prescribed by the forcible entry and detainer statutes is exclusive. See Hammond Sav. & T. Co. v. Boney, 61 Ind.App. 295, 107 N.E. 480; Walker v. Chanslor, supra; Canavan v. Gray, 64 Cal. 5, 27 P. 788. In Walker v. Chanslor, supra [153 Cal. 118, 94 P. 609, 17 L.R.A. N.S. 455, 126 Am. St. Rep. 61]. The reasoning of this line of cases is set out by the Supreme Court of California as follows:

"Under these provisions [forcible entry and detainer statutes] a right of action is given to one wrongfully in actual possession of property where a forcible entry is made, even by the owner, in which action damages occasioned through the forcible entry may be recovered, and judgment for the restitution of the property had. But the Code prescribes a method of procedure and the extent of the remedy for such forcible entry, and that remedy is exclusive. A person wrongfully in possession, dispossessed by the owner of the property having a right of entry, and no excessive force being used in asserting it, is not entitled to maintain any other action that is afforded for a forcible entry under the Code. He was not entitled to maintain, under such circumstances, any action whatever under the common law, and the common-law rule has only been changed in this state to the extent, and no further, that the Code affords him a remedy under its provisions referred to which he otherwise would not have."

There is, however, another line of authority holding directly to the contrary. See Mason v. Hawes, 52 Conn 12, 52 Am. Rep. 552; Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545; Whitney v. Brown, 75 Kan. 678, 90 P. 277, 11 L. R. A., N. S., 468, 12 Ann. Cas. 768; Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529, 8 L. R. A. 537, 19 Am. St. Rep. 540; Reeder v. Purdy, 41 Ill....