Woodbury v. Bunker , 98 Utah 216 ( 1940 )

I concur. Interpretation of statutes like or similar to ours have not only varied from state to state but within the states. Much of this confusion is due to the failure to see that forcible entry and forcible detainer were two different things although a forcible detainer might have been initiated by a forcible entry, and due to the further failure, perhaps, to distinguish between two different types of forcible detainer. Difficulties also arose from the fact that, whatever the interpretation, it seemed to work an injustice in certain cases.

The purpose of the Act seems essentially to be to protect the possession of an occupant — not a mere trespasser or intruder — against an interference with that possession except through course of law. It would, at this point, be useful to have the salient parts of the Forcible Entry and Detainer Statutes before us so that this distinction may be thoroughly understood. They read as follows:

104-60-1. Forcible Entry:

"Every person is guilty of a forcible entry, who either:

"(1) By breaking open doors, windows or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstance of terror, enters upon or into any real property; or,

"(2) After entering peaceably upon real property, turns out by force, threats or menacing conduct the party in actual possession."

104-60-2. Forcible Detainer:

"Every person is guilty of a forcible detainer who either:

"(1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,

"(2) In the nighttime, or during the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such lands."

With respect to the showing that plaintiff must make in maintaining an action for forcible entry or detainer, Section 104-60-11, R.S.U., 1933, states:

"On the trial of any proceeding for any forcible entry or forcible detainer the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at thetime of the forcible detainer." (Italics added.)

These words in Subsection (11) requiring a claimant in forcible detainer to prove that he "was entitled to the possession at the time of the forcible detainer" have given the courts much trouble. If under Paragraph (2) of Sec. 104-60-2 it is necessary for the claimant to prove that he had a better right of possession than the entrant in addition to the fact that the claimant had been an occupant within five days of entrance, and that he had come in during the nighttime or during the claimant's absence, the action would seem to permit issues other than occupancy. In fact, in many cases the title would be drawn into issue. The question is whether the words "entitled to possession", as far as Paragraph (2) of Sec. 104-60-2 is concerned, require any proof by the former occupant in that regard other than that he had been an occupant within five days before the entrance of the defendant.

The decisions in the states having the same statute as ours, or having substantially like phrases, are diametrically opposed. In California we find cases going both ways on the interpretation of these very phrases. The difficulties of understanding the California decisions have been further enhanced by the confusing in those decisions of forcible detainer with forcible entry, for which action would have lain in any event. Of course, where one forcibly enters he may also forcibly detain, but he may forcibly detain without forcibly entering. The cases have sometimes lost sight of this fact. We shall briefly advert to the California cases, which, if studied by the reader in the light of what has been said above, will be more understandable.

In 1872 California passed statutes with the same wording as our Sections 104-60-1; 104-60-2; 104-60-11, R.S.U. 1933, known as Sections 1159, 1160, and 1172, respectively, of the California Code of Civil Procedure. But earlier than 1872 there were statutes with similar provisions. Mitchell v. Davis, 1863, 23 Cal. 381, was an action for forcible entry and detainer. The court said there that even though defendant has legal title and right to possession, he may not take the law into his own hands — a declaration perfectly consistent.

For failure clearly to separate the forcible entry factor from that of forcible detainer, see Mecham v. McKay, 1869, 37 Cal. 154;Warburton v. Doble, 1869, 38 Cal. 619; Wilbur v.Cherry, 1870, 39 Cal. 660; and House v. Keiser, 8 Cal. 499,500, where the court said a mere "scrambling" possession was not sufficient to maintain forcible entry and detainer, apparently recognizing that there must be more than mere trespass or just occupancy. To this effect is Voll v. Butler, 49 Cal. 74. InTreat v. Forsyth, 1871, 40 Cal. 484 and in Conroy v.Duane, 1873, 45 Cal. 597 the words "unlawful entry" were given the connotation of being without permission of the occupant. But in Powell v. Lane, 1873, 45 Cal. 677, it was held that he who had title and right of possesion was not guilty of an unlawful entry if he entered his own property in the absence of the occupant. The court lost sight of the fact that "forcible entry" involves force. It was talking of "forcible detainer". If it meant that a defendant with right of possession who had entered in the absence of one who was a bona fide occupant within five days could successfully defend in a forcible detainer action, the holding must be considered as later overruled. In Potter v.Mercer, 1879 53 Cal. 667 (under the 1872 Code), the court squarely held in line with Powell v. Lane, supra, that a party cannot be guilty of forcible detainer if he obtains possession peaceably from an occupant who is entitled to possession. To like effect is Goldstein v. Webster, 7 Cal. App. 705,95 P. 677. In Spiers v. Duane, 1880, 54 Cal. 176, the court seemed to recognize that a mere "scrambling" possession (occupancy) would not sustain an action for unlawful detainer. But in Voll v. Hollis, 1882, 60 Cal. 569; Giddings v. Land Water Co. 83 Cal. 96, 23 P. 196, and McCauley v. Weller, 12 Cal. 500, the court held that all entries on actual possession are unlawful and the question of good or bad faith on the part of the defendant does not affect the right of recovery. And Carteri v.Roberts, 1903, 140 Cal. 164, 73 P. 818 made that more definite by holding that "unlawful entry" meant unlawful with respect to the relation between defendant and plaintiff, distinguishing the class of cases represented by Voll v. Hollis on the ground that in those cases there was a contractual relation between plaintiff and defendant which made the entry permissive and therefore not unlawful. This distinction was again noted in Dutcher v.Sanders, 1912, 20 Cal. App. 549, 129 P. 809, which case seems definitely to have settled the law in California to the effect that the plaintiff need only show an entry without his permission, and that the possession he is entitled to is the peaceable occupation he enjoyed within five days of the entry. InPaxton v. Fisher, supra, we adopted the same view. The Sanders case seems also to hold that "occupant" includes a landlord whose tenant has left, and that entry after the tenant has vacated is an entry in the absence of the occupant, the landlord. See California Products, Inc. v. Mitchell, 52 Cal. App. 312,198 P. 646. The unlawful entry test laid down in the Sanders case was adhered to in Hedden v. Waldeck, 89 Cal. App. 494,265 P. 344, and Baxley v. Western Loan Building Co., 135 Cal. App. 426, 27 P.2d 387. Thus California seems committed to the doctrine enunciated in Paxton v. Fisher, supra.

Washington has practically the same statute as California. InGore v. Altice, 33 Wash. 335, 74 P. 556, in dicta inRidpath v. Denee, 85 Wash. 322, 148 P. 15, affirmed Denee v. Ankeny, 246 U.S. 208, 38 S. Ct. 226, 62 L. Ed. 669; inSunday v. Moore, 135 Wash. 414, 237 P. 1014; and in Angel v. Ladas, 143 Wash. 622, 255 P. 945, is laid down the rule substantially as enunciated in Dutcher v. Sanders, supra.

But in Randolph v. Husch, 159 Wash. 490, 294 P. 236, 237, the court said:

"If this were the first time we were called upon to construe the statute, the logic of the appellant [that by the words `that he was entitled to the possession,' plaintiff must show a legal right to possession in him] would be very appealing, but the statute has been on the books for many years, and we have repeatedly used language which indicates the view that the rule to be applied is the same in both forcible entry and forcible detainer cases"

— that is to say, that right of possession is not in issue.

In Oklahoma the opposite view is held, that it is necessary for plaintiff to show that he has a right of possession and not mere peaceable undisturbed occupancy. See Clark v. Keith,86 Okla. 156, 207 P. 87 and Wilson v. Davis, 182 Okla. 435,78 P.2d 279.

Missouri evidently holds as does California. See Beeler v.Cardwell, 29 Mo. 72, 77 Am. Dec. 550. A note in 77 Am. Dec. 552, cites Kansas, Iowa, Illinois, and Nebraska as states where the right of possession may be put in issue, but see Brown v.Feagins, 37 Neb. 256, 55 N.W. 1048; and Tarpenning v. King,60 Neb. 213, 82 N.W. 621. As to Texas which seems to follow the Oklahoma doctrine, see Null v. DeYoung, Tex. Civ. App.71 S.W.2d 335.

By now it should be fairly apparent to the reader that there is a sharp conflict of authority. And it should also be apparent that one may take either view without being beyond the confines of permissible range of credible opinion. But the more important thing is to settle the law in this state.

In Paxton v. Fisher, supra, we followed the later California decisions in construing Paragraph (2) of Sec. 104-60-2, R.S.U. 1933, holding the words "unlawfully enters" to mean unlawfully as relating to an occupant who was there within five days. We adhere to this holding as enunciated in the main opinion. As to this paragraph we construe the words "entitled to possession" to mean that the person must show occupancy within five days of the other's entry. The statute is directed to preserve one's right of occupancy whether personal or constructive.

But this construction opens up difficulties with Paragraph (1) of Section 104-60-2 which covers the case where there is no necessity of surreptitious entry on the occupancy of another. The claimant who knocks for entry may not have been an occupant but may be the real owner with the right of possession and therefore entitled to it. A mere trespasser or one with only a "scrambling" possession, by refusing to to give up possession, would be unlawfully holding or keeping possession. It is even doubtful whether, as against such, a possessory action would need to be brought. But where the defendant claims under color of title or makes a bona fide claim of possession under a third party, the situation is more difficult. Can, in such a case, the defendant prevent the knocking claimant from succeeding in the summary action after he has kept him out by force or threats, by showing only that he was a bona fide occupant under claim of right, or must he show a better right to possession than the claimant in order to succeed in the summary action? If he must show a better right in order to prove that he was not "unlawfully" withholding possession, he takes a great risk of being assessed for treble damages when he defends against a claimant who knocks at his door, although he in good faith believes that he has lawful occupancy and possession. We would incline to hold that he need not take this risk were it not that the last part of Section 104-60-11 throws doubt upon such an interpretation. We complete the quotation of the words of that Section as follows:

"The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, had been in the quiet possession thereof for the space of one whole year continuously next before the commencement of the proceedings, and that his interest therein is not then ended nor determined; and such showing is a bar to the proceedings."

The negative implication from such wording is that if the occupant-defendant cannot show the conditions therein set out, the knocking claimant may prevail. It gives countenance to the contention that under Paragraph (1) of Sec. 104-60-2, the issue of better right of possession, with its more basic issue of title to prove the right, may be drawn into controversy, even though the title may not be adjudicated, but that even if the claimant can prove it, he still does not prevail if the defendant occupied for 12 months or more under the conditions specified in the wording last quoted. In such a case it may be that even a claimant with good title and right of possession is barred from a summary remedy; otherwise not.

But since it is not necessary to decide this question in this case, a posing of the question is sufficient. We, therefore, leave open the question of whether the words "entitled to possession" should be given a meaning, when applied to a claimant under Paragraph (1) of Sec. 104-60-2, which requires the claimant to prove as against the occupying defendant, a better right of possession than has the latter.