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should not only refuse to surrender the possession, but deter him from entering by threats and menaces, and if A should quietly submit to the wrong, and should leave B for some weeks or months wholly undisturbed in the possession, it cannot be doubted that B would have acquired a 'peaceable' possession, even as against A, which would enable him to maintain this form of action, if subsequently forcibly expelled by A. Though his original entry may have been fraudulent, and without the slightest color of right, nevertheless, if A submits to it, and allows him to remain quietly in the possession for a considerable period, he cannot afterward take the law into his own hands and repel the intruder by force. The possession, though wrongful, and at first maintained by menaces or violence, will have ripened into a peaceable possession, for a disturbance of which this form of action would be the appropriate remedy. The peace and good order of society demand that an actual and peaceable occupation of real estate, however it may have been originally acquired, shall not be disturbed by violence. But in the case supposed, if A, instead of quietly submitting to the wrong, had immediately come with an armed force, and had endeavored to expel B from the premises, it would be absurd to hold that B had such a 'peaceable' possession as would enable him, in an action of forcible entry and detainer, to evict A and recover the possession. His possession, though actual, was never 'peaceable'; and it would be a mockery of justice to hold that, under these circumstances, the law would aid the wrongdoer, who had only a temporary, scrambling possession, acquired by fraud or force, and maintained for a time by threats and violence to recover the possession from the former occupant. It was not for cases of that character that the forcible entry and detainer act was designed to furnish a summary remedy, but for cases wherein a 'peaceable' possession has been invaded. In such cases one of the issuable facts is whether or not at the time of the entry complained of the plaintiff had the 'peaceable' possession as against the defendants, or only a scrambling occupation, maintained by force or threats, and which had not ripened into a peaceable possession. As already stated, it is often difficult to decide whether an actual possession is a peaceable or only a scrambling occupation; and in the very nature of the case it is impossible to lay down an inflexible rule by which to determine whether a possession is a peaceable or a contested and scrambling possession. Each case must be decided by a jury, on its circumstances, under proper instructions from the court.

"It may be stated, however, as a general proposition, that if a person enter upon land in the actual and peaceable occupation of another, the possession which he acquires cannot be deemed to be peaceable during the time when it has to be protected by firearms, or other demonstrations of force, against an attempted or threatened re-entry of the former occupant, who manifests to the intruder, by his words and acts, that he intends to re-enter at the earliest moment when he

Am. St. Rep., Vol. 121—25

can do so without violence, and who is only prevented from entering by an exhibition of firearms, or threats and menaces. Such a possession cannot justly be said to be 'peaceable' in any sense, and certainly not in the sense of the statute. If the rule were otherwise, the most deplorable results would ensue. A ruffian might enter a private dwelling without color of right, and in mere wantonness expel its inmates, barricade the doors, and by an exhibition of firearms prevent the owner from approaching his own dwelling. The owner might make the most determined and persistent efforts to re-enter his own dwelling, but be as often repulsed by violence or threats; and if he should ultimately succeed, we apprehend no respectable court would hold that the intruder had acquired a 'peaceable' possession, on which he could maintain a forcible entry against the former occupant. If a different rule prevailed, it would operate as a premium upon lawless aggression, and an incentive to the grossest outrages, and no one would be safe in his possession of real property, if it was understood to be the law that any ruffian may intrude upon premises in the actual occupation of another, maintain his possession by force or menaces for a time, and when expelled by the former occupant after repeated unsuccessful efforts to regain the possession, might maintain an action for forcible entry, on the plea that he had acquired a 'peaceable' possession."

4. Illustrations of Sufficiency of Possession.-Possession is a question of fact, and while there are cases in which the facts are so far conceded, or established without contradictory evidence, that the court may affirm, as a proposition of law, that the plaintiff was in the peaceable possession when the forcible entry was made, yet this can rarely be so in a litigated case. Nor is it possible to form any test by which, in the case of conflicting evidence or of evidence from which different conclusions may be rationally drawn, one can always safely affirm that possession did or did not exist. In a general sense, it may be said that a party is in possession of property when he exercises dominion or control over it, not shared with any other person, and of such a character as owners of like property usually exercise over it: Lorah v. Emmerson (Ala.), 45 South. 228; Potts v. Magnes, 17 Colo. 364, 30 Pac. 58; Hardin v. Sangamon County, 71 Ill. App. 103; St. Louis A. & M. Assn. v. Reinecke, 21 Mo. App. 478; Willis v. Stevens, 24 Mo. App. 494; Scott v. Allenbaugh, 50 Mo. App. 130; Hinniger v. Trax, 67 Mo. App. 521; Galligher v. Connell, 35 Neb. 517, 53 N. W. 383; Davidson v. Phillips, 9 Yerg. 93, 30 Am. Dec. 393; as where it consists of a room in a building used by persons in the business of abstracters and conveyancers, and they keep therein their private books, stationery, and other appliances required for the transaction of their business: Hardin v. Sangamon County, 71 Ill. App. 103; or of a church to which persons go, place new locks on the door, fasten up doors and windows, and notify all persons present and within hearing of an intention to hold exclusive possession:

Sitton v. Sapp, 62 Mo. App. 197; or land upon which they go, plant a small crop, begin the erection of a house, mark the boundary lines, and commence inclosing the property: Hinninger v. Trax, 67 Mo. App. 521. Fences or other inclosure of the property are not indispensable to its possession: Goodrich v. Van Landigham, 46 Cal. 601; Howard v. Whitaker, 22 Ky. Law Rep. 1775, 61 S. W. 355; Geoghegan v. Turner, 26 Ky. Law Rep. 537, 82 S. W. 244; Wall v. Nelson, 3 Litt. 395; King's Admr. v. St. Louis G. Co., 34 Mo. 34, 84 Am. Dec. 68. On the other hand, the erection of such fence or other inclosure, or the maintenance of it, after it has been lawfully acquired, especially if it keeps control of the livestock of the occupant or keeps from trespass or other intrusion the livestock of others, is sufficient, and very nearly conclusive, evidence of possession: Allen v. Tobias, 77 Ill. 169; Campbell v. Coonradt, 22 Kan. 704. The inclosure may consist partly of a natural barrier: Knowles v. Crocker Estate Co., 149 Cal. 278, 86 Pac. 715; but the erection of a common inclosure about a number of fields owned by different parties and pastured by them in common does not destroy their possession: Wylie v. Waddell, 52 Mo. App. 226. The mere entry upon a parcel of real property or constructing, or commencing the construction of, a fence, and the possession gained thereby, must be considered with what we have already said in subdivision V, a, 3, considering the necessity for the possession becoming complete and peaceable: Hays v. Altizer, 24 W. Va. 505. Mere plowing or other cultivation does not necessarily establish possession of the land plowed or cultivated: Edwards v. Cary, 60 Mo. 572; but as neither inclosure nor residence is indispensable to possession, it is evident that it is often manifested and sufficiently established by the cultivation of the land in the ordinary manner, in good faith, and in the usual course of husbandry, and not as a mere pretense: Hussey v. McDermott, 23 Cal. 413; Valencia v. Couch, 32 Cal. 339, 91 Am. Dec. 589; Harris v. Turner, 46 Mo. 438. The land may be of a character, or situate in a part of the country, where its ordinary use does not require either inclosure or cultivation, as where it is used for pasturage, and that use may, therefore, constitute possession: Giddings v. '76 Land & Water Co., 83 Cal. 96, 23 Pac. 196; Keen v. Schweigler, 70 Mo. App. 409; Hopkins v. Calloway, 3 Sneed, 11; Winn v. McKinnon (Tex. Civ. App.), 39 S. W. 965. We have already incidentally suggested, and the law is, that actual residence or personal presence on land is not essential to its possession where such possession is sufficiently manifested by other acts of use and control: Gray v. Collins, 42 Cal. 152; Giddings v. '76 Land & Water Co., 83 Cal. 96, 23 Pac. 196; Hammond v. Doty, 184 Ill. 246, 56 N. E. 371; Bradley v. West, 60 Mo. 59; Jarvis v. Hamilton, 16 Wis. 574. Therefore possession may be maintained by tenants and agents and still be the possession of the principal or landlord, all the acts being, in contemplation of law, done by him and for his benefit: Barnwell v. Stephens, 142 Ala. 609, 38 South. 662; Moore v. Goslin, 5 Cal. 266;

Minturn v. Burr, 16 Cal. 107; Potts v. Magnes, 17 Colo. 364, 30 Pac. 58; Muller v. Balke, 167 Ill. 150, 47 N. E. 355; Emsley v. Bennett, 37 Iowa, 15; Burdette v. Corgan, 27 Kan. 275; Kercheval v. Ambler, 4 Dana, 166; Higginbotham v. Higginbotham, 10 B. Mon. 369; Coolbaugh v. Porter, 33 Mo. App. 548. The possession of the plaintiff must be exclusive. At all events, he cannot successfully rely on his possession when it was shared with the defendant: Barnwell v. Stephens, 142 Ala. 609, 38 South. 662; Jamison v. Graham, 57 Ill. 94; Gardner v. Hickock, 102 Mich. 497, 60 N. W. 974. A cotenant turned out of possession is still in law deemed in possession if another cotenant remains in possession, not holding or claiming adversely: Bernecker v. Miller, 40 Mo. 473, 93 Am. Dec. 309. Of course, it is not essential that all persons but the plaintiff should be excluded from the land or have their property removed therefrom, provided their being, or having such property, there is in subordination to the occupant's rights, and not as independent claimers or possessors: House v. Camp, 32 Ala. 541.

5. Illustrations of Acts not Sufficient to Constitute Possession.— In a general sense, it may be said that acts which are not of dominion or control, and notwithstanding which the dominion or control may be in another, or not exist in anyone, do not establish possession. Among these may be mentioned the payment of taxes: McCartney v. McMullin, 38 Ill. 237; Pensoneau v. Bertke, 82 Ill. 161; McCartney's Admr. v. Alderson, 45 Mo. 35; Miller v. Northrup, 49 Mo. 397; hitching horses in an unfinished stable: Blake v. McCrary, 65 Miss. 443, 4 South. 339; cutting of timber for firewood: Pensoneau v. Bertke, 82 Ill. 161; Wilson v. Stivers, 4 Dana, 634; Bell v. Cowan, 34 Mo. 251; and like occasional acts, even when accompanied with the occasional use of the land for grazing purposes: Stockley v. Cisna (Tenn.), 104 S. W. 792; nailing up the doors of a house: Hopkins v. Buck, 3 A. K. Marsh. 110; retaining fragments of an old fence, which, when erected, was probably sufficient to constitute possession: Hassett v. Johnson, 48 Ill. 68; initiating acts of possession, such as erecting a cabin, deadening trees, cutting brush and erecting part of a fence, but leaving all these acts incomplete, and suspending all further action: Galligher v. Connell, 35 Neb. 517, 53 N. W. 383; Commonwealth v. Lemmon, Add. (Pa.) 315; taking possession of a house, which is confessedly personal property, because admitted to be on the land of another: Brooks v. Warren, 5 Utah, 118, 13 Pac. 175.

6. Possession of Part as Possession of the Whole.-One who has a lease or conveyance of property, or some other writing constituting color of title thereto, and who thereunder takes open, visible possession of some definite part, has what may properly be styled a constructive possession extending over the whole, if there is no adverse possessor of any part thereof, and this rule applies to actions of forcible entry and detainer: O'Callaghan v. Booth, 6 Cal. 63; Brooks v. Bruin, 18 Ill. 539; Hardisty v. Glenn, 32 Ill. 62; Vanhorne v. Tilley,

1 T. B. Mon. 50; Boyce v. Blake, 2 Dana, 127; Wilson v. Stivers, 4 Dana, 634; Louisville & N. R. Co. v. Sparks, 14 Ky. Law Rep. 398; Kirby v. Scott, 24 Ky. Law Rep. 2175, 73 S. W. 749; Seals v. Williams, 80 Miss. 234, 92 Am. St. Rep. 601, 31 South. 707; Kincaid v. Logue, 7 Mo. 166; Prewitt v. Burnett, 46 Mo. 372; Hosli v. Yokel, 58 Mo. App. 169; Town of Oyster Bay v. Jacob, 109 App. Div. 613, 96 N. Y. Supp. 620; Mansfield v. Northcut, 112 Tenn. 536, 80 S. W. 437; Olinger v. Shepherd, 12 Gratt. 462; Moore v. Douglas, 14 W. Va. 708; Duff v. Good, 24 W. Va. 682. There are a few decisions which, while they do not deny the existence of this rule, appear not wholly consistent with it: Hoskins v. Cox, 2 B. Mon. 306; Roberts' Heirs v. Long, 12 B. Mon. 194; Harris v. Turner, 46 Mo. 438. There is no doubt that, as to a mere trespasser, or one entering on the possession of another without color of title, his possession is restricted to his actual occupancy and does not extend to the balance of the tract entered upon: Kincaid v. Logue, 7 Mo. 166; Kennedy v. Prueitt, 24 Mo. App. 414; and that, though one has color of title, his possession of one portion of a tract cannot be held to extend over another part in the actual adverse possession of another person: Clements v. Hays, 76 Ala. 280; Ross v. Roadhouse, 36 Cal. 580.

7. Continuance of Possession in the Absence of the Possessor.— He who once had possession may abandon it, and if he does so, it ceases to exist for his benefit, and his subsequent entry thereon, whether forcible or not, is not an entry on his possession, but the mere going or being away from the property is not necessarily, or even ordinarily, an abandonment of its possession, and is never such if the going away was with intent to return, at least if the absence is not of such length or accompanied with such circumstances that the intention to return must be deemed of itself abandoned: Wilson v. Shackelford, 41 Cal. 630; Leroux v. Murdock, 51 Cal. 541; Giddings V. '76 Land & Water Co., 83 Cal. 96, 23 Pac. 196; Huftalin v. Misner, 70 Ill. 205; Powell v. Davis, 54 Mo. 315; Lewis v. Yoakum (Tex. Civ. App.), 32 8. W. 237; Mitchell v. Carder, 21 W. Va. 277. If real property is in possession of a lessee who leaves it unoccupied at the close of his term, his landlord must be regarded as having resumed such possession: Porter v. Murray (Cal.), 12 Pac. 425; Shelby v. Houston, 38 Cal. 410; Wilson v. Shackelford, 41 Cal. 630; Walser v. Graham, 60 Mo. App. 323; and during the time required for the procuring of a new tenant or other taking of personal possession by the landlord, he is entitled to the same protection and remedy against persons making forcible entries as if he were personally on the premises: Anderson v. Mills, 40 Ark. 192; McCormick v. McDowell, 28 Ky. Law Rep. 854, 90 S. W. 541; Anderson v. Chicago R. I. etc. R. Co. (Mo. App.), 107 S. W. 456. It is never necessary, though property is not used, for the owner or possessor to remain in person on the premises, nor even to see that he has an agent or representative there, for he may maintain control over it in fact or in contemplation

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