Benedict v. Hart

55 Mass. 487

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1848
• Status: Published

Opinion

Shaw, C. J.

The question in this case seems to be one of fact rather than of law. It is a suit on the Rev. Sts. c. 104, § 2, for a forcible detainer of land, under the clause giving the summary remedy, where “ an entry has been made in a peaceable manner, and the possession shall be unlawfully held by force.” It appears by the facts agreed, that the plaintiff was the owner of land lying partly in the state of Connecticut, and partly in the state of Massachusetts, and that the defendant was in possession without license. The plaintiff, as owner, was entitled to the possession, as incident, and therefore the defendant’s possession was unlawful.

The only question is, whether the evidence shows that the detention of that part of the farm, which lies in Massachusetts, was forcible. The defendant was in possession of the whole farm, as well that part lying in Massachusetts, as that in Connecticut; the plaintiif entered while the defendant was at work, in a field, through which the line of the state passed, and demanded possession; the defendant, in a rage, and having an ox goad in his hand, threatened violence to him with that weapon, if he did not leave the farm. Supposing this to be within the limits of Connecticut, the question is, whether it was a forcible detainer of the possession of that part of the field lying on the other side of the line, within the territory and jurisdiction of Massachusetts. The menace was to use violence if he did not immediately quit the field, including the part in Massachusetts.

The authorities agree, that it is a forcible detainer, when one who has entered peaceably threatens corporal damage to one who rightfully attempts to enter, or repels him with violence. Com. Dig. Fore.. But. B. 1. So, in Bac. Abr. Fore. Ent. and Det. B., it is said, that the same circumstances of violence or terror, which will make an entry forcible, will make a detainer forcible also ; and, amongst other instances, by way of illustration, it is added, if one threatens to do bodily hurt to the former possessor, if he dare return, or place men at a distance from the house, to assault any one who shall make an attempt to enter it.

If menaces of violence and bodily harm constitute a forcible detainer, a fortiori where the party threatening has the means and manifests the disposition to carry them into immediate execution. Such a menace with a weapon in hand, upon one within reach of it, is an assault in law; so presenting a loaded gun at another, within gunshot, with the like menace, is an assault. Genner v. Sparks, 6 Mod. 173. It was stated by lord Ellenborough, in a case at nisi prius, that he had held, that filing a gun loaded with shot into a field was a breaking of the close, though it had been doubted. Pickering v. Rudd, 1 Stark. R. 56. Supposing the defendant had stood on the"Connecticut side of the line, with a loaded rifle, capable of commanding every point on the Massachusetts side of the line, and used like menaces against the plaintiff; can it be doubted, that this would have been a forcible detainer ? The fact, that the parties stood on the Connecticut side of the Ine, is immaterial, the force and menaces used being such, as, in our judgment, to constitute a forcible detainer of the close on the Massachusetts side. See Kinsley v. Ames, 2 Met. 29.

Judgment for the plaintiff.