Town of Oyster Bay v. Jacob

The defendant appeals from a final order of forcible entry and detainer entered upon a verdict of a jury in summary proceedings authorized by title 2 of chapter 17 of the Code of Civil Procedure, and instituted in the County Court of Nassau. The petitioner alleged (1) that it was in. constructive possession of the premises as owner in fee simple; (2) that on March 30, 1904, it was in actual and

First. Did the 'evidence warrant a finding that the petitioner was peaceably in actual possession on March 30, 1904? Actual possession •means “a-subjection to the will and dominion of. the claimant.” It .‘“exists when a thing is in one’s immediate occupancy,” and it is evidenced by circumstances which vary according' to the locality and character of the property. Anderson’s Law Dictionary. ‘.‘Generally any overt acts indicating dominion and a purpose to occupy and not to abandon the premises will satisfy the requirements as to possession.” 13 Am. & Eng. Ency. of Law, p. 748. It is possession “required by the character and situation of the lands.” Allaire v. Ketcham, 55 N. J. Eq. 168 , 35 Atl. 900 . It intends that the land is “in the immediate control or power of the party.” Omaha & Florence L. & T. Co. v. Parker (Neb.) 51 N. W. 139 , 29 Am. St. Rep. 506 . The land in quescion is a neck of sand, 300 feet wide and 1,200 feet long, in the township of Oyster Bay, known as “East Beach,” which joins a peninsula called ‘.‘East Island” with the north mainland of Long Island. The father of the defendant is the owner of East Island, and he contends that he o'whs Tast Beach also. The petitioner sent four custodians to East Beach in April, 1903, who went there about 2 a. m. About 4 p. m. the defendant landed a party of 20 men on the beach and cast the custodians from it. They returned 2-or 3 days thereafter, and there they remained for almost 11 months. They lived in a tent, and then in a house which they set up, and, as one of them testifies, “without interruption, peaceably and quietly.” The defendant admitiedthat he knew thése riten were there as keepers in possssion for nearly a year. This sandy beach was unimproved and uninhabitated. Neither its location, nor its physical condition, nor its adaptability to any present use, would have moved- any occupant to improve it or to disturb much its natural condition. Presumably it had no agricultural value, no immediate rental value if improved, and it afforded no other usufruct, although the sand itself could be sold. There is no period prescribed by the statute as prerequisite to an actual occupation. Cain v. Flood, supra. Even though the defendant first obtained a scrambling possession, he had immediately.abandoned it, and, knowing full well the character of the occupdncy, had suffered the petitioner to remain on the land unmo

Was there evidence to warrant the finding that the petitioner was peaceably in possession? One of the custodians testifies that after his entry, a few days subsequent to April 30, 1904, or, more clearly, after his return, he and his associates lived there for almost a year without interruption, peaceably and quietly. In Stanley v. Schwalby, 147 U. S. 508 , 514, 13 Sup. Ct. 418 , 37 L. Ed. 259 , the court seems to define, or at least to approve of the definition of, peaceable possession as one that was “continuous and one that was not interrupted by adverse suit.” In Allaire v. Ketcham, supra, it is said that the test is:

“Whether the defendant, setting up a claim of title, has interfered with complainant’s possession by an act which is suable at law, and suit upon which will or may involve the title of the defendant.”

There is no proof that for the 11 months intervening the return of the custodians and March 30, 1904, the defendant made any sign or up to that day had entered any adverse suit to recover the premises, though he knew full well that the petitioner was asserting possession through its custodians. Though he may have understood “that a right of property merely, not joined with the possession, would not justify” him in “committing an assault upon the person in possession, in order to regain possession,” although the possession was “wrongfully withheld” (Bliss v. Johnson, 73 N. Y. 529 , 533), yet he surely knew that the courts were open to him. So far as the right to the remedy was concerned, all that the plaintiff was obliged to show was- peaceable and actual possession at the time of the defendant’s forcible entry, and the manner in which it secured possession in the beginning is not available to the defendant as a justification of his own unlawful act. Cain v. Flood, supra.

Second. Was the evidence sufficient to establish a forcible entry and detainer? Though entry and detainer may be distinct acts (section 2233, Code Civ. Proc. ; People v. Fields, 1 Lans. 222 )—indeed, one was an offense at common law, and the other was punishable by statute only (Cunningham on Forcible Entry and Detainer)—the acts are generally considered and treated in substance and principle as one offense (Cunningham, p. 65). “The common practice is to combine the two words and to treat of forcible entry and detainer as a single term.” McAdam on Landlord & Tenant, vol. 3, p. 21. The proceeding is to undo an act of physical force. Compton v. The Chelsea, 139 N. Y. 538 , 541, 34 N.

In Willard v. Warren, 17 Wend. 257 , 262, Cowen, J., says:

“The result seems to be that there must be something of personal violence, or a tendency to or threat of personal .violence, unless the entry or detainer be riotous.”

In Milner v. McLean, 2 C. & P. 17, 18, Abbott, C. J., says:

“For if persons either take or keep possession of either house or land, with such number of persons and show of force as is calculated to. deter the rightful owner from sending them away and resuming his own possession, that is.' sufficient in point of law to constitute a forcible entry, or a forcible detainer.”

See, too, Ely v. Yore, 71 Cal. 130 , 133, 11 Pac. 868 ; State v. Pollok, 42 Am. Dec. 140 .

It is not necessary that the occupant should resist until he compel the doing of an overt act in breach of the peace. On the day in question the plaintiff’s custodians, save one, were temporarily absent. The-defendant landed on the beach from a boat with eight or ten hired men. He began to build a fence on one side of a highway which runs on the beach. He set up a separate fence all about the hut of the custodian, which was then actually occupied by the latter, four feet therefrom and four feet high, and thus confined him to this house and the small area of land around it. The defendant’s followers told the custodian that they proposed to keep him company for some months or some weeks. Indeed, the defendant on the trial testified that he went with his retainers to establish a camp for the purpose of maintaining the possession “which he had.” There was a gate in the fence which encompassed the hut. The custodian came out of the gate to the fence-of the house, and beyond the fence along the highway, to accost a man thereon. When he sought to return, the defendant, then backed by his retainers, told him he could not come back, that he might have his belongings, but that he “could not return to the beach,” and the defendant did not allow him to return to the house or to the beach, but handed out his effects over the fence to him. There were no spoken threats of personal violence, but there may be a menace without words. Was not such an entry by the show of a strong hand, and by the constructive force of combined numbers? If there were ten men, there are authorities which stamp them as a multitude. Anderson’s Law Dictionary. Was not such an entry calculated to cow the occupant, and to deter him by fear of personal violence from asserting or maintaining his rights ? Would he, unless in fear of violence, when asserting his own dominion, have permitted such an entrance for the avowed purpose of such a stay and accompanied by such instant acts ? To adopt the test of Abbott, C. J., supra:

“Would he not. ii unawed or inapprehensive, have sent them away and resumed his own possession?”

Fourth. It is urged that the petitioner failed to establish by his evidence any constructive possession of the premises. Even if this were the fact, it may be answered that the petitioner alleged and proved that it was peaceably in actual possession and proved a forcible entry. The expression of the statute, constructive possession, has been defined to apply to a case where the petitioner had the absolute fee or the absolute right of possession by some other grant, and who would therefore be entitled to the actual possession, but for the forcible holding, out. Lowman v. Sprague, 73 Hun, 408 , 26 N. Y. Supp. 568 . The petitioner also alleged constructive possession and sought to prove it by reading in evidence the Andros patent, etc. The appellant insists that the proof was not sufficient; but I do not. deem it necessary to examine the point, inasmuch as the petitioner did not declare upon a forcible holding out, but upon a forcible entry and detainer as a continuous act, and gave in proof sufficient evidence of a peaceful and actual possession. If he had relied upon the forcible detainer, only, then the question of proof of constructive possession would have been pertinent. It is contended that the description of the premises was not sufficient. It was as follows:

“All that certain piece or parcel of land situate, lying, and being in the town of Oyster Bay, county of Nassau, more particularly bounded and described as follows: Beginning at a point where the easterly line of the highway known as the ‘Lattingtown-East Beach Road’ intersects the main high-water line of Long Island Sound, on the north shore of Long Island; thence westerly along said high-water line to the lands'now or formerly owned by Leonard Jacob, commonly known as ‘East Island’; thence southerly, along the easterly line of said Jacob’s land, to the salt pond, commonly known as ‘Dosoris Pond’; thence easterly along the north line of said Dosoris pond to certain 'salt meadows lying easterly thereof, and along said salt meadows to the east line of the aforesaid Lattingtown-East Beach road; thence northerly along the east line of said Lattingtown-East Beach road to the point or place of beginning—containing within said bounds twelve (12) acres, be the same more or less, subject, however, to the easement of the public in, on, and over such portion of the said highway known as the ‘Lattingtown-East Beach road’ as is included within said bounds, together with the appurtenances and the buildings and improvements thereon erected.”

In McAdam on Landlord and Tenant (2d Ed.) vol. 3, p. 33, it is said:

“The general rule may be said to be that the description of the premises should if possible, be sufficiently certain to enable the officer to deliver possession of the premises claimed without requiring information outside of the papers.”

Cunningham on Forcible Entry and Detainer says, at section 120:

“The description of land in a complaint from which the land is susceptible of being easily and definitely located by a surveyor is sufficient. Any description by which the premises can be readily identified and located is all that is required”—citing authorities.

See, too, Mead v. Daniel, 2 Port. (Ala.) 86 ; Silvey v. Summer, 61 Mo. 253 ; McAdam on Landlord & Tenant (3d Ed.) vol. 3, p. 32.

I think that the court did not err in excluding the deeds offered by the defendant. The question was not as to his title or as to his superior right of possession, but as to his forcible entry and detainer. Authorities supra. Even if they had been admitted, they would have established but a constructive possession. While there can be no wrongful detainer by a “true owner” when he has made a lawful and peaceable entry (Bliss v. Johnson,, supra), yet his constructive possession does not excuse his forcible entry (Id., at page 533, and authorities supra). If the defendant was entitled to the request, refused under exception, that “if the town was in peaceable possession on the morning of March 30, 1904, that nevertheless Mr. Jacob was entitled to regain his possession peaceably if he could,” without the modification made by the court, the error was cured by the subsequent and final charge that “one claiming to be entitled to the possession of real property has a right to take possession under such a claim without having had any prior possession, if he can take it peaceably,” which was accepted by both parties.

I advise that the order be affirmed, with costs. All concur.