
    The Town of Oyster Bay, Respondent, v. William H. Jacob, Appellant, Impleaded with Others, Defendants.
    Second Department,
    December, 1905.
    Forcible entry and detainer — when evidence of defendant’s title properly, excluded— facts showing peaceable and actual possession by petitioner — facts constituting forcible entry and detainer—charge.
    Summary proceedings to remove one making a forcible entry and detainer of lands are to preserve the peace and prevent parties from asserting their right-to lands by force even though their title and right to possession be superior. Hence, the deed under which a defendant, not in possession, claims title, is properly excluded.
    
      A jury is justified in finding .the petitioner in such proceeding to he in peaceable and actual possession of waste lands at the seaside when such petitioner has placed custodians thereon who have lived in a hut and tent peaceably without interference for eleven months. -Such possession is not destroyed by-the fact that defendant, in the temporary absence .of some of the custodians, landed a force of twenty men and threw the remaining, custodians oflE the land, if the custodians returned the following day and retained undisturbed possession for eleven, months.
    The patent under which petitioner,claims title contains a sufficient description of the premises as to which a constructive possession is claimed "by the occupancy of a part thereof when such description readily identifies the lands.
    A forcible entry and detainer is shown when defendant, in the absence of all but one of the petitioner’s custodians, entered with a force of men and built a fence around the Hut of said custodians and, when the remaining custodian came out, refused to allow him to return, but handed his .clothes out to him and said they intended to remain for some months or weeks. Spoken threats, of personal violence are not necessary as there may be menace without words. In such proceedings it is proper to charge that “one claiming to be entitled to the possession of real property has a right- to take possession under such claim, without having had any prior possession, if he can take it peaceably.”
    ■ Appeal by the defendant, William H. Jacob, from a final order of the County Court of Nassau county, entered in the -office of the clerk of the county of Nassau on the 4th day of. May, 1904.
    
      Charles De Hart Brower, for the appellant.
    
      Henry A. Monfort [Halstead Scudder with him on the brief], for the respondent.
   Jenks, J.:

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 county. 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 peaceable possession.thereof. “The statute was not intended to confer rights. The main object still is to preserve the public peace and prevent parties from asserting their rights-by force or violence, though by gradual additions the remedy has bec'ome in effect a private as well as a public one.” (Wood v. Phillips, 43 N, Y. 152, 157.) If the ’ petitioner could establish that it W98 peaceably in actual possession of the premises, and then the defendant made a forcible entry and detainer, it could secure this remedy which restores the possession that had been wrested from it by force. Though the defendant could show a better title or a superior right of possession, it would not avail him in this proceeding, for he could not first take the law into his own hands to gain possession, and then invoke the law to. keep it. (Iron Mountain & Melena Railroad v. Johnson, 119 U. S. 608, 611; Cain v. Flood, 14 N. Y. Supp. 776; affd. on opinion below, 138 N. Y. 639 ; Felly v. Sheehy, 60 How. Pr. 439.) ,

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. (And. L. Diet. 790) “ 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 [2d ed.], 748.) It is possession “ required by the nature and situation of the property.” (Allaire v. Fetoham, 55 N. J. Eq. 168.) It intends that the land is “in the immediate control or power of the party.” (Omaha & Florence L. & T. Co. v. Marker, 33 Neb. 775; 51 N. W. Rep. 139.) The land in question is a neck of sand, 300 feet wide and 1,200 feet long, in the township of Oyster Bay, known as East Beach, that 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 owns East Beach also. The petitioner sent four custodians to East Beach in April, 1903, who went there about two a. m. About four p. m. the defendant landed a party of twenty men on the beach and cast the custodians from it. They returned two or three days thereafter, and there they remained for almost eleven months. They lived in a tent and then in a house which they set up, and, as one: of them testifies, “ without any interruption, peaceably and quietly.” The defendant admitted that' he knew these men were there as keepers in possession for nearly a year. This sandy beach was unimproved and uninhabited. 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 of 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 occupancy, had suffered the petitioner to remain on the land unmolested by force or undisturbed by law for almost a year. I think that the jury was warranted in finding an actual possession on,March 30, 1904. (Authorities supra, and Edwards v. Cary, 60 Mo. 572.) I lay stress upon the fact that the custodians put up a house on the land and abode therein. ■ This at least was full actual occupation of a part of the premises. Their principal based its right of ownership upon the Andros patent, which he contended embraced all of the premises. Actual possession of a part under bona fide claim and color of title to the whole is possession of the whole, or so much as is not in adverse possession of others. (Olinger v. Shepherd, 12 Gratt. [Va.] 462; Vanhorne v. Tilley, 1 T. B. Mon. [Ky.] 51.) The patent was important to define the extent or boundaries of the. claim and possession. (Clements v. Fays, 76 Ala. 280, 284.)

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. Sohwalby (147 U. S. 508, 514) the court seems to define- (or at least to approve of- the definition) peaceable possession as one that was continuous and not interrupted by adverse suit.” In Allaire v. Ketoham (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 the. eleven 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 will not justify ” him in “ committing an assault and battery upon the person in possession, for the purpose of regaining possession,” although the possession ivas “ 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 (Code Civ. Proc. § 2233; People v. Fields, 1 Bans. 222) — indeed, the first one was an offense at common law and the other was punishable by statute only (Gunn. Fore. Ent. & Det.) — the acts are generally considered and. treated in substance and principle as one offense (Cunn. Fore. Ent. & Det. supra, 65.) “ The common practice is to combine the two words and to treat of forcible entry and detainer as a single term.” (3 McAdam Bandl. & Ten. [3d ed.] 21.) The proceeding is to undo an act of physical force. (Compton v. The Chelsea, 139 N. Y. 538, 541.) The force aimed at is more than that “ which in judgment of law accompanies every trespass on the land of another.” (iCommonwealth v. Dudley, 10 Mass. 403, 409.) At least, there must flow from the physical force a reasonable apprehension by the OAvner of personal violence if he attempt then to claim or to maintain his rights against the actor. (Commonwealth v. Dudley, supra.) 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. Maclean (2 C. & P. 17,18) Abbott, C. J., says: “ For, if persons either take or keep possession of either house or land, with suclr 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 ; State v. Pollok, 42 Am. Dec. 140.) It is not necessary that the occupant -should resist Until he compel the dding-of ari-overt áct in" breach of the-peace. On the day iii question the plaintiffs" custodians, -save oiré;, w'ére1 temporarily absent. The defeiidánt landed on the béádh from a boat with 'eight or ten Mréd men-. He- b’egan tó build- a fence on one side of á 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 tó this house and the small área 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 tó. establish a'camp for th'e purpose of maintaining the possession “which we had.” There was a" gate in the férice which encompassed the-hut. The custodian came out of the gate to the fence of the house; and heyOnd the féndé along the highway to adcost a' man thereon: When he-'sdUght to return,"the defendant, then backed by his retainers, told him he CoUl’d not'coiné back, that he might have Ms belongings, -but that, hecould not return to the beach,” ánd the defendant did not allow him, tó return to ¡the house or to the beach, but handed out his ¿Sects-Over the féndé, to him, There" were no spoken threats of personal violence, but." there "may be a meriace Without words. Was not such an entry-"by"thé- show of a strong hand, arid by the constructive force of combined nurñ-, bers? If there were ten men, tbeie' are riUthOldties ■ whidhMtaMp them as a multitude. "(And: L. Diet. 692.) Was riot such an entry calculated to cow the occupant, arid to deter him by fear "of persona] violence from asserting or maintaining his rights ?’ WonU.’he, unless in fear of violence, when asserting Ms own dominion, have permitted such aft entrance for tlie -avowed' purpose of such a' stay and adeem, panied by such instant acts ? To- adopt the" test, of Abbott, C. J. x (supra)': “Would he not, if unawed or unapprehensive, have sént ■them away and resumed, his OWri possession.? '

Third. The same chcu instances may be considered on the qUes tion- of forcible detainer. (People v. Pickert, 8 Cow. 226, 231.) After the occupation by the defendant and his retainers the custodian .went out beyond the main' fence for a moment dri an errand without there being an indication of his intent to .abandon posses-. sion. . When he Sought to return, the defendant hacked by his retainers, forbade him, and told him he could not return to the beach and passed out his personal effects to him. There is proof that the defendant’s retainers have remained in encampment on the beach ever since. It is true that after March 30, 1904, the custodians landed on the beach and either forced their way into their house or were suffered to enter it, but at the same time the defendant retained his men on another part of the premises and now maintains them in a tent or in a house thereon. I do not think that he can show no forcible detainer (which was articulated with the forcible entry of March 30,1904) simply because the occupant thereafter regained or was suffered to regain a lodgment on a small part of the premises. It is no sufficient answer that the offender has yielded up or lost possession of a part of the premises.

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.) 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 forciblé 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 mean 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 Edad.; 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.” The criticism is directed against the boundary on the west by the lands now or formerly owned by Leonard Jacob. It appears that the peninsula adjoining the beach is known as East Island, which is upland and is more fertile and is .described by a witness as an island projecting into the soutid; that as to “the island” the beach does not continue, but the shore continues with a strip of land known as a beach about 300 feet wide, and with meadow land back of it. There is no dispute but that Jacob owned and does own East Island. In McAdam on Landlord and Tenant (Vol. 3 [3d ed.], 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 (2d ed. § 120) says: “ The description of land in a complaint in an action of forcible entry and detainer 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; Bihey v. Bummer, 61 Mo." 253; 3 McAdam Landl. & Ten. [3d ed.] 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 b no wrongful detainer by a true owner when the entry was both lawful and peaceable” (Bliss v. Johnson, supra), yet his constructive possession does nottexcuse his forcible entry. (Ibid, 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 30th, 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.

Hirsohberg, P. J., Bartlett, Woodward and Rich, JJ., concurred.

Final order of the County Court of Nassau county affirmed, with costs. 
      
       See 2d ed. p. 65.—[Ref.
     