By the Court, Mullin, J.
Before proceeding to examine the principal question presented on this appeal, it is necessary to dispose of a preliminary one suggested by the respondent’s counsel, viz. whether the complaint is sufficient to give the officer before whom the proceedings were instituted jurisdiction. The objection made to the complaint is, that it did not allege that the relator had an estate in freehold for a term of years then subsisting, or some other right to the possession thereof.
The complaint alleges that the relator and his grantor have been in the quiet and peaceable possession of said premises and shop for many years, and for more than five years, and that he has a good legal right and estate to said premises, and that he still has a legal right to the possession of said premises. Heither a freehold interest, nor an interest for a term of years is alleged, nor is it shown what right the relator has to the possession, except such as.the law may presume from the allegation that he and his grantor have been in possession for more than five years, and has a good and legal right and estate to and in the premises, and a legal right to the possession.
The legislature, in framing the statute in question, intended to require the party to disclose the nature of his right to the possession, how, and from whom it was acquired, so that it would appear that his right was a legal and valid one. The statement in the complaint is not in compliance with the statute; it is a mere allegation that the right exists, without stating the right. It is [210]*210alleged, however, that the relator and his grantor has heen in possession for more than five years, and the right to the possession still continues. Possession is prima facie evidence of ownership in fee.
It was held in The People v. Leonard, (11 John. 504,) that proof of peaceable possession, in proceedings for forcible entry and detainer, is prima facie evidence of estate to support the allegation in the indictment, under the act then in force, that the complainant was seised.
.But if the allegation was not sufficiently full and specific, the defendant should have raised the question before the judge, to have entitled himself to the benefit of the objection. He might have moved at the special term to dismiss the proceedings for the defect. (Carter v. Newbold, 7 How. Pr. 166. People v. Reed, 11 Wend. 157. Same v. Same, 13 How. 446.)
The complaint is not so defective as to deprive the officer of jurisdiction.
The important questions in this case requiring consideration, are:
1st. Was the complainant, in the actual possession of the premises, forcibly entered or forcibly detained ?
2d. Was there a forcible entry or detainer proved ?
I. Was the complainant in the actual possession of the premises ? Section 11 of the ¡Revised Statutes, relating ■ to forcible entry and detainer, (3 R. S. 5th ed. 831,) provides that the complainant shall only be required to show on the trial of a traverse by the defendant, in addition to the forcible entry, or • detainer, that he was peaceably in the actual possession of the premises at the time of the entry, or was in the constructive possession at the time of the forcible holding out. From this and other provisions of the act, it is obvious that the legislature intended to prevent all persons, however good their title or right to the possession of premises, from forcibly acquiring possession of them; and having peaceably [211]*211acquired possession, from holding out another, who at the time of such entry or holding out, was peaceably in possession thereof. In such case the party entitled must resort to ejectment or other legalmeamre, to acquire possesion.
If such is the object of the statute, it matters not how invalid the occupant’s right to possession may be; if he is in the peaceable and quiet occupancy of premises, that occupancy cannot be forcibly invaded.
It is said in The People v. Reed, that a mere intruder or trespasser cannot institute proceedings under the statute and be restored to the possession he unlawfully held. If by this is meant that a person who intrudes, or trespasses on my land, and is by me forcibly removed, or held out, cannot in proceedings against me be restored to the possession from which I forcibly removed him, I most cordially assent to the proposition. But if the learned judge intended to hold that a person who, without right, enters on my land and who is therefore as to me a trespasser, cannot in proceedings under the statute be restored to possession as against a third person having no interest in or right to the possession, I cannot conceive why such an intruder may not institute preeeedings against the owner, as well as against a person without interest in the premises, by reason of the alleged force; but the restoration to possession cannot be had by an intruder as against the . lawful owner. It is settled that the owner of land may | forcibly remove from them any one who is in possession j of them without right, and an action of trespass will not lie | against him. (Wilde v. Cantillon, 1 John. Cas. 123. Hyatt v. Wood, 4 John. 150. Ives v. Ives, 13 id. 235. Jackson v. Morse, 16 id. 197. Estes v. Kelsey, 8 Wend. 555.) But the person so entering, whether owner or not, may be indicted and púnished for unlawful force, (Hyatt v. Wood, 4 John. 150. Ives v. Ives. 13 id. 235. Jackson v. Morse, 16 id. 197.)
This question of possession is a mixed one of law and fact, The facts relating to it are that one Fish, in 1857, [212]*212owned the building which then stood on the West side of Main street in the village of Oneida and which he occupied as a harness shop. In 1857, as I understand it, Fish moved the shop on the place where it stood at the time of the alleged forcible entry. In July, 1862, Fish sold the shop to the complainant Cooper, but remained in it as tenant of Cooper until April, 1863, when he left, surrendering the key to Cooper. . There were a pair of hay scales on one side of the building, coal and lumber were piled on another. The. building was erected by one Higinbotham. The land on which it stood belonged to the state, but at what time the state acquired the same, or what connection Higinbotham had with the premises, does not appear. Higinbotham gave Fish permission to occupy it until he should want the land. Cooper testifies that he was in the shop at the time Fish surrendered possession and gave up the key, and he then locked it up. On the 8th of June, 1863, the day before the unlawful entry by the defendant, he again went into the building, so that he was only twice in the building between April, 10, and June 9, 1863; The building, as between Higinbotham and Cooper was personal property. So, doubtless, it was between the state and Cooper, but as it stood on the land, the person in possession of the house was in possession of the land. It was impossible for one person to be in possession of the house, and another to be at the same time in possession of the land on which it stood.
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By the Court, Mullin, J.
Before proceeding to examine the principal question presented on this appeal, it is necessary to dispose of a preliminary one suggested by the respondent’s counsel, viz. whether the complaint is sufficient to give the officer before whom the proceedings were instituted jurisdiction. The objection made to the complaint is, that it did not allege that the relator had an estate in freehold for a term of years then subsisting, or some other right to the possession thereof.
The complaint alleges that the relator and his grantor have been in the quiet and peaceable possession of said premises and shop for many years, and for more than five years, and that he has a good legal right and estate to said premises, and that he still has a legal right to the possession of said premises. Heither a freehold interest, nor an interest for a term of years is alleged, nor is it shown what right the relator has to the possession, except such as.the law may presume from the allegation that he and his grantor have been in possession for more than five years, and has a good and legal right and estate to and in the premises, and a legal right to the possession.
The legislature, in framing the statute in question, intended to require the party to disclose the nature of his right to the possession, how, and from whom it was acquired, so that it would appear that his right was a legal and valid one. The statement in the complaint is not in compliance with the statute; it is a mere allegation that the right exists, without stating the right. It is [210]*210alleged, however, that the relator and his grantor has heen in possession for more than five years, and the right to the possession still continues. Possession is prima facie evidence of ownership in fee.
It was held in The People v. Leonard, (11 John. 504,) that proof of peaceable possession, in proceedings for forcible entry and detainer, is prima facie evidence of estate to support the allegation in the indictment, under the act then in force, that the complainant was seised.
.But if the allegation was not sufficiently full and specific, the defendant should have raised the question before the judge, to have entitled himself to the benefit of the objection. He might have moved at the special term to dismiss the proceedings for the defect. (Carter v. Newbold, 7 How. Pr. 166. People v. Reed, 11 Wend. 157. Same v. Same, 13 How. 446.)
The complaint is not so defective as to deprive the officer of jurisdiction.
The important questions in this case requiring consideration, are:
1st. Was the complainant, in the actual possession of the premises, forcibly entered or forcibly detained ?
2d. Was there a forcible entry or detainer proved ?
I. Was the complainant in the actual possession of the premises ? Section 11 of the ¡Revised Statutes, relating ■ to forcible entry and detainer, (3 R. S. 5th ed. 831,) provides that the complainant shall only be required to show on the trial of a traverse by the defendant, in addition to the forcible entry, or • detainer, that he was peaceably in the actual possession of the premises at the time of the entry, or was in the constructive possession at the time of the forcible holding out. From this and other provisions of the act, it is obvious that the legislature intended to prevent all persons, however good their title or right to the possession of premises, from forcibly acquiring possession of them; and having peaceably [211]*211acquired possession, from holding out another, who at the time of such entry or holding out, was peaceably in possession thereof. In such case the party entitled must resort to ejectment or other legalmeamre, to acquire possesion.
If such is the object of the statute, it matters not how invalid the occupant’s right to possession may be; if he is in the peaceable and quiet occupancy of premises, that occupancy cannot be forcibly invaded.
It is said in The People v. Reed, that a mere intruder or trespasser cannot institute proceedings under the statute and be restored to the possession he unlawfully held. If by this is meant that a person who intrudes, or trespasses on my land, and is by me forcibly removed, or held out, cannot in proceedings against me be restored to the possession from which I forcibly removed him, I most cordially assent to the proposition. But if the learned judge intended to hold that a person who, without right, enters on my land and who is therefore as to me a trespasser, cannot in proceedings under the statute be restored to possession as against a third person having no interest in or right to the possession, I cannot conceive why such an intruder may not institute preeeedings against the owner, as well as against a person without interest in the premises, by reason of the alleged force; but the restoration to possession cannot be had by an intruder as against the . lawful owner. It is settled that the owner of land may | forcibly remove from them any one who is in possession j of them without right, and an action of trespass will not lie | against him. (Wilde v. Cantillon, 1 John. Cas. 123. Hyatt v. Wood, 4 John. 150. Ives v. Ives, 13 id. 235. Jackson v. Morse, 16 id. 197. Estes v. Kelsey, 8 Wend. 555.) But the person so entering, whether owner or not, may be indicted and púnished for unlawful force, (Hyatt v. Wood, 4 John. 150. Ives v. Ives. 13 id. 235. Jackson v. Morse, 16 id. 197.)
This question of possession is a mixed one of law and fact, The facts relating to it are that one Fish, in 1857, [212]*212owned the building which then stood on the West side of Main street in the village of Oneida and which he occupied as a harness shop. In 1857, as I understand it, Fish moved the shop on the place where it stood at the time of the alleged forcible entry. In July, 1862, Fish sold the shop to the complainant Cooper, but remained in it as tenant of Cooper until April, 1863, when he left, surrendering the key to Cooper. . There were a pair of hay scales on one side of the building, coal and lumber were piled on another. The. building was erected by one Higinbotham. The land on which it stood belonged to the state, but at what time the state acquired the same, or what connection Higinbotham had with the premises, does not appear. Higinbotham gave Fish permission to occupy it until he should want the land. Cooper testifies that he was in the shop at the time Fish surrendered possession and gave up the key, and he then locked it up. On the 8th of June, 1863, the day before the unlawful entry by the defendant, he again went into the building, so that he was only twice in the building between April, 10, and June 9, 1863; The building, as between Higinbotham and Cooper was personal property. So, doubtless, it was between the state and Cooper, but as it stood on the land, the person in possession of the house was in possession of the land. It was impossible for one person to be in possession of the house, and another to be at the same time in possession of the land on which it stood. For all purposes of the statute regulating proceedings in forcible entry and detainer, the person in possession of the house must be deemed to be in possession of the land. I think Cooper was in the actual possession of the house; he did not occupy it, or use it, but he had been in the receipt of the rents and profits, and was about to put in order to rent it; he went into it whenever he had occasion to do so, and no person had either the pos- ' session, or the right to the possession. If he did not have [213]*213possession or ownership, or any other interest beyond a mere right of possession, which is essential to such possession ; if his possession was neither actual nor constructive; then the premises were beyond the pale of the law, and his property might be destroyed with impunity.
The building was on the land of the state, without objection from any person. Cooper had the right to keep it there until the state, or its grantee or lessee, should require its removal. If, under these circumstances, Cooper is not to be deemed in the actual possession of the premises, then it must follow that no man is in the actual possesion of a house which he usually rents but is for the time being vacant.
The mechanic who owns a shop which he does not work in, but it stands on another’s land by such other’s permission, is not in the actual possession. A great variety of cases might be suggested in which there would be no actual occupation, if Cooper was not in the actual possession of the premises in question.
It is said in Qomyn’s Digest under the head of “ Forcible entry and detainer,” that an entry is forcible, if the person entering break the door and enter, though nobodybe within.
In 2 Burns’ Justice, 176, it is said, that it seems to be agreed, that an entry may be forcible, not only in respect to the violence actually done to the person of a man; as by beating him, if he refuses to relinquish his possession, but also in respect to any other kind of violence, in the manner of the entry, as by breaking open the door of a house, whether any person be in it or not, especially if it be a dwelling house; and also by any other act of outrage after the entry, as by carrying away the party’s goods.
This proposition, that actual occupancy at the time of the entry is not necessary in order to entitle the person injured to proceed under the statute, has been recognized in all the authorities, and it is too late to disturb it now, whatever our opinion might be as to its correctness.
[214]*214The entry, to be forcible, ought tobe accompanied with some circumstances of actual violence or terror: (2 Burns Justice, 176.) Of what importance can violence or terror, dangerous weapons, or a multitude of people be where there is no one in possession to be terrified? Tet within the principle stated by Burn and Qomyn, these circumstances will constitute an entry forcible, though no person be on the premises at the time the entry is made. There can neither be a breach of peace, nor danger of a breach of it, where any entry, however violent, is made upon unoccupied premises. The object of the act being to prevent acts of violence upon persons being in the quiet and peaceable occupancy of land, I do not perceive how the statute is violated when there is no person upon whom the injury can be inflicted. I can understand, however, > there can be in such case a forcible detainer, but not how ■the entry can with any propriety be called forcible; all the objects secured could have been attained by holding that a forcible entry could only be made upon a person actually in the peaceable possession of the premises at the time the entry was made. If no one was in the actual possession, and an unlawful entry was made, and the person entitled to the actual possession was forcibly kept out, forcible detainer was established; the person kept out would be entitled to be reinstated. While I think this should be the law, I do not think- we are at liberty so to declare it, in view of the decisions of the courts in this country, as well as in England, (1 Hawkins’ Pl. 264, §§ 26, 27.) It is said that if a, man finds another out of his house, and therefore enters and prevents the other from returning, it is a forcible entry. It is clearly a forcible detainer; no satisfactory reason is assigned why it should be called a forcible entry.
In People v. Runkle, (8 John. 466, and 9 id. 147,) it was held that the defendants were liable for forcibly entering a church of which the complainants were the trustees, [215]*215although the entry was made when neither trustees nor any other person were in the church. If the possession of trustees of a church is an actual possession, so a's to entitle them to the benefit of the statute in relation to forcible entry and detainer, it would seem to follow that the complainant was also in the actual possession of the shop.
While I am decidedly of the "opinion that it would have more effectually carried out the intention of the legislature, that no one not actually upon the premises at the time of a forcible entry could institute proceedings under the statute, no matter how forcible such entry might be, yet the rule seems to be settled the other way, " and I am not prepared to overrule it.
II. Was the entry forcible? In Burn's Justice, (vol. 2 p. 176,) it is said, if the entry be peaceable, and there shall be force or violence, and the person entering cut or take away any corn, grass or wood, or shall forcibly or wrongfully carry away any other goods then there being, this seemeth to be a forcibly entry, punishable by the statute, that is to say, the statute against forcible entry and detainer. Again, on the same page, it is said, that perhaps an entry may also be rendered forcible by any act of outrage after the entry, as by carrying away the party’s goods, &c.
The force forbidden by the stature is of two kinds: 1st. Against the person in possession. 2d. Force or violence forbidden by law is that which is directed against person or property.' If one person goes to the house of another and drives him out, or, being armed, or having with him a multitude of people, frighten the occupant so that he leaves, the entry in all such cases is forcible. This is' the first kind of force. The second kind is used where the entry is made upon premises of which no one is at the moment in occupancy, with such a number of persons so conducting themselves, as to constitute a riot, or other breach, of the peace. (Willard v. Warren, 17 Wend. 257.) The [216]*216facts proved did not establish the first kind of force; there was no one in the possession, and hence there was no person" towards whom violence could be used; neither do I think that there is evidence to authorize a jury to find that the entry was made riotously or maliciously, or that any breach of the peace was committed.
If the law 'is as stated' by Burn, that the acts of the party after entry, towards the property, and not towards the person of the occupant, might be held to characterize the entry, making it forcible, while, in fact, it was peaceably, enough was done to constitute a forcible entry in this case. The deféndant carried off the building and placed it on other premises.
But I do not think that a peaceable entry can be converted into a forcible one, merely by violence alone to the property on which the entry is made.
I am of the opinion, however, that enough was proved to require the court to submit it to the jury, whether there was not a forcible detainer. Hot only did the party enter, but he removed the building, having with him such a number of persons as would render it unsafe for the complainant to attempt to go again on the land, and he was told that the defendant had now got possession of the land, and meant to'hold it.
It was for the jury to say what was the meaning of this language, in view of the conduct of the defendant in removing the building and entering and occupying the premises. If he meant to say to the complainant, you must not attempt to come on this land; I will hold it at all hazards, by the use of whatever force and violence may be necessary—and it is for the jury to say whether this was not the fair import of the defendants’ language—a forcible holding out was proved.
One ground for the motion for a nonsuit was that the case as proved did not fall within the definition of forcible entry and detainer. Although the motion was not granted, [217]*217but a verdict ordered, it was obviously on the ground that neither a forcible entry or detainer was proved. Two of my brethren are of opinion that loth a forcible entry and detainer was proved.
[Onondaga General Term,
June 27, 1865.
I am quite clear that enough was proved to require the' case to be submitted to the jury. I am, therefore, of opinion that the judgment be reversed, and a néw trial ordered, costs to abide the event.
Mullin, Foster, Moi-gan and Bacon, Justices.]