This is an appeal on the judgment roll from a judgment in favor of the plaintiff, George S. Buchanan, and against the defendant, Wilford J. Crites. The facts as shown by the pleadings are as follows: The plaintiff on December 21, 1942, was in lawful possession of a specifically described dwelling unit. On that date, he and his family temporarily left the dwelling and locked all the doors. In their absence the defendant entered upon the premises and by means of a key opened the doors and removed them from their hinges. He loaded the doors in his car and took them from the premises. During the night the weather was below freezing. The plaintiff alleged that because of the housing shortage he was unable to find a suitable place for himself and his family and was, therefore, forced to reside for twelve days in the dwelling house from which the defendant had taken the doors. *Page 431
The taking of the doors was alleged to have been wanton and malicious and to have caused the plaintiff great physical discomfort. It is alleged that he was forced to build up the fires in his stoves frequently and at unusual hours.
In answer the defendant admitted the taking of the doors, but countered that he was the owner and entitled to the possession of the premises. In reply the plaintiff admitted that the defendant was entitled to possession. The court instructed the jury that before it could find for the plaintiff he 1-3 must prove that he was in lawful possession of the dwelling; that the defendant, without plaintiff's consent, removed and carried away the doors; and that the plaintiff was damaged thereby. The court then instructed the jury that as a matter of law, the plaintiff was in actual possession of the premises and that that possession was lawful. The jury found for the plaintiff and court entered judgment upon the verdict. From this judgment the defendant prosecutes this appeal. Since this appeal is brought on the judgment roll there is no transcript of the evidence before us. We are consequently not able to ascertain the exact nature of the tenancy by which the plaintiff held the possession of these premises. On appeal the appellant has the burden of showing wherein the trial court erred. If the record is not sufficient to determine a material question because of the fact that the appellant has failed to bring enough of it before us, the doubts should be resolved in favor of sustaining the judgment. From the record before us it appears that the court instructed the jury that the plaintiff had "lawful" possession of the dwelling unit from which the defendant took the doors. It appears also from the pleadings that the defendant had the right of possession. In view of this latter fact the tenancy could be no more than a tenancy at will. Any higher tenancy would be inconsistent with the defendant's right of possession.
It does not appear that the plaintiff was given notice to quit possession and on this record we must assume that none was given. However, at the common law a tenant at will 4 was not entitled to such notice. Nicholl *Page 432 v. M'Kaeg, 10 Barnewall Cresswell, 721, 21 Eng. Common Law Reports, 154; Cross v. Campbell, 89 Ill. App. 489; Thompson on Real Property, Vol. 3, p. 24, Sec. 1029.
In view of the fact that the defendant had the right of entry and since he was not required at the common law to give the plaintiff formal notice to quit, it is extremely doubtful that he violated a legally protected right or breached a duty under the common law. Under the ancient common law, one entitled to possession had the right to enter and use such force as was necessary, short of death or serious bodily injury, to regain and hold possession of his land. An early (1381) statute, 5 Richard II, made the use of force in obtaining possession of land a criminal offense. But there was no civil liability. See Harper on Torts, p. 102; Jackson v. Farmer, 9 Wend., N.Y., 201;Overdeer v. Lewis, 1 Watts S., Pa., 90, 37 Am. Dec. 440;Kellam v. Janson, 17 Pa. 467; Stearns v. Sampson,59 Me. 568, 8 Am. Rep. 442; Sterling v. Warden, 51 N.H. 217, 12 Am. Rep. 80; Walker v. Chanslor, 153 Cal. 118, 94 P. 606, 17 L.R.A., N.S., 455, 126 Am. St. Rep. 61; Meader v. Stone, 7 Metc., Mass., 147; Mugford v. Richardson, 6 Allen, Mass., 76, 83 Am. Dec. 617; Thompson on Real Property, Vol. 3, p. 251; and the notes in 21 Harvard Law Review 295 and 33 Harvard Law Review 733.
So far as the respective rights and duties of these parties under the common law are concerned, it is clear from these authorities that the defendant breached no duty to the plaintiff unless the taking of the doors can be said to have been the use of excessive force. Had the plaintiff been in the house at the time the defendant took the doors, it is a 5 tenable view that the defendant would have had to first request the plaintiff to quit the premises. Perhaps until a simple request has been made, the use of any force might be excessive. It is also tenable that since the plaintiff was not present when the defendant entered upon the premises, he was required to await plaintiff's return so that the request to vacate could be made. But in any event it would appear that under the common *Page 433 law the defendant would not be liable to the plaintiff (a tenant at will) for the total damage occasioned by the plaintiff staying in possession of the house for 12 days after the defendant took the doors. Under the circumstances it could hardly be said that the plaintiff was in possession with the consent of the defendant. It follows that this judgment cannot be sustained solely under principles of the common law. We must, therefore, ascertain wherein and to what extent the common law has been changed by statute.
Most American jurisdictions, including Utah, have enacted Forcible Entry and Detainer Statutes. In states having such statutes the prevailing view is that "a landlord who is entitled to possession must, on the refusal of the tenant to surrender the premises, resort to the remedy given by 6 law to secure it." 45 A.L.R. 313, 316. If the landlord, contrary to the terms of such a statute enters by force without resort to legal process, he is by statute made civilly liable to the dispossessed tenant. We held in Paxton v. Fisher, 86 Utah 408,45 P.2d 903, 906, that under the Forcible Entry and Detainer Statutes, 104-60-1, ff. U.C.A. 1943: "Even rightful owners should not take the law into their own hands and proceed to recover possession by violence, or by entry in the nighttime, or during the absence of the occupants of any real property."
Section 104-60-1, U.C.A. 1943 provides:
"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 * * *."
By this Act entries, which at the common law were prohibited only by criminal sanctions, have been made tortious and a civil remedy has been prescribed for the benefit of the injured tenant. The statute has created a new right and made any one who violates said right liable in a civil suit.
The courts are not entirely in agreement as to whether one must follow the procedure prescribed by the statute or whether the regular civil action can also be brought. One *Page 434 view is that the procedure prescribed by the forcible entry and detainer statutes is exclusive. See Hammond Sav. T. Co. v.Boney, 61 Ind. App. 295, 107 N.E. 480; Walker v. Chanslor, supra; Canavan v. Gray, 64 Cal. 5, 27 P. 788. In Walker v.Chanslor, supra [153 Cal. 118, 94 P. 609, 17 L.R.A., N.S., 455, 126 Am. St. Rep. 61]. The reasoning of this line of cases is set out by the Supreme Court of California as follows:
"Under these provisions [forcible entry and detainer statutes] a right of action is given to one wrongfully in actual possession of property where a forcible entry is made, even by the owner, in which action damages occasioned through the forcible entry may be recovered, and judgment for the restitution of the property had. But the Code prescribes a method of procedure and the extent of the remedy for such forcible entry, and that remedy is exclusive. A person wrongfully in possession, dispossessed by the owner of the property having a right of entry, and no excessive force being used in asserting it, is not entitled to maintain any other action that is afforded for a forcible entry under the Code. He was not entitled to maintain, under such circumstances, any action whatever under the common law, and the common-law rule has only been changed in this state to the extent, and no further, that the Code affords him a remedy under its provisions referred to which he otherwise would not have."
There is, however, another line of authority holding directly to the contrary. See Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552; Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545; Whitney v. Brown, 75 Kan. 678, 90 P. 277, 11 L.R.A., N.S., 468, 12 Ann. Cas. 768; Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529, 8 L.R.A. 537, 19 Am. St. Rep. 540; Reader v. Purdy, 41 Ill. 279.
The following quotation from Reader v. Purdy, supra, is representative of the reasoning of this latter line of cases:
"The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful, it is a trespass, and an action for the trespass must necessarily lie. It is urged that the only remedy is that given by the *Page 435 statute, — an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry, and if not lawful all the consquences of an unlawful act must attach to it. The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular act to be so illegal that immediate restitution must be made at the costs of the transgressor, and in another form of action that the same act was perfectly legal, and only the exercise of an acknowledged right. * * *
"We state, then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be, therefore, held illegal in all forms of action."
In England in Newton v. Harland, (1840), 1 Mann G. 644, 133 Eng. Reprint 490 and Beddall v. Maitland, (1881) L.R. 17, Ch. Div. 174, the same view had previously been taken. The court in those cases held that since the entry by force was a crime and therefore unlawful, a civil action would lie for an assault and battery arising out of such forcible entry. However, these cases were overruled in 1920 by the Court of Appeal in Hemmings v.The Stoke Poges Golf Club, Ltd., 1920 L.R. 1 K.B. 720.
The first theory as propounded by the cases first discussed seems to more closely conform to the mosaic formed by the development of this phase of the law in American jurisdictions. The Common Law of England as adopted by the various American jurisdictions, in addition to the principles 7 developed by court decision, included all statutes in effect in England at the time of the adoption. By virtue of a statute (5 Richard II) all forcible entries were made unlawful. This statute was a part of the common law as adopted by the American jurisdictions. Yet even though forcible entries were thus forbidden, the common law gave the ousted tenant no civil remedy. The courts held that the statute did not purport to create a legally protected interest in the tenant and a corresponding legal duty on the owner. Not every prohibition has that effect. Hemmings v. The Stoke Poges Golf Club, Ltd., supra. *Page 436
Part of the reasoning of the early common law cases was that a tenant holding over had given implied consent in his lease agreement to the landlord's entry at the termination of the lease, and this could be pleaded by way of defense. But in view of the Utah Forcible Entry and Detainer 8 statutes this reasoning could hardly be held to be applicable. When the parties entered into the relationship of landlord and tenant it would seem that they contracted in regard to existing statutes. It consequently can be no longer held that the tenant has given irrevocable consent to the landlord's re-entry. We favor the reasoning of the latter line of cases set out above. Under our statute any entry by force is prohibited. Being prohibited, such entry was wrongful and the aggrieved party has his remedy. The Forcible Entry Statute expressed a policy that no person should enter by force, stealth, fraud or intimidation, premises of which another had peaceful possession. This had the effect of taking away the common law right of a landlord to possess his own property by no more force than was necessary and left the one against whom force was used to pursue his common law action. Whether the plaintiff would have had a right to bring an action under the Forcible Entry Statute we need not consider. It suffices that he did not in this case do so.
It is contended by the appellant that this was not an entry by "force" within the meaning of the statute. The Utah Act was copied from the California Code of Civil Procedure, Section 1159. In Winchester v. Becker, 4 Cal. App. 382, 9, 1088 P. 296, 297, the defendant had entered the premises by means of a key on two different occasions while the plaintiff was absent. The court, construing the California Act, stated in holding that there had been a forcible entry:
"The question is presented whether the defendant's entry made in the manner stated comes within the provisions of the first subdivision of section 1159 of the Code of Civil Procedure, by which every person is to be held to be guilty of a forcible entry who `by breaking open doors, windows, or other parts of a house * * * enters *Page 437 upon or into any real property.' This question we think must be answered in the affirmative. The meaning of the provision is that any * * * force is to be regarded as `breaking open' the door or window or house. This was the construction given to the term `break' as entering into the common-law definition of burglary, and we see no reason why a different construction should be given to it in the provision now under consideration."
See also Sprinkle v. Anderson, 57 Mont. 223, 187 P. 908;Harper v. Sallee, 376 Ill. 540, 34 N.E.2d 860, 135 A.L.R. 189. The early Utah case of Brooks v. Warren, 5 Utah 118,13 P. 175, uses language which would indicate that the Utah statute required more force than was held necessary under the cases last cited above, but we there construed the Act before it was amended to add an entry by "fraud, intimidation or stealth." See Laws of Utah 1884, page 334. Here it is alleged that the defendant entered upon the premises in plaintiff's absence by unlocking the doors and removing the doors from their hinges. Under the authorities construing acts similar to the Utah Act, and under the Utah statutes making it a forcible entry to enter by stealth, these facts sufficiently show a forcible entry. In this regard it is important to note "forcible entry" and "forcible detainer" while often spoken of together, are in fact separate and distinct wrongs. Schroeder v. Woody, 166 Or. 93, 109 P.2d 597, and concurring opinion in Woodbury v. Bunker, 98 Utah 216,98 P.2d 948.
This is a regular civil action for damages. The Forcible Entry and Detainer Statute is relied upon to show that the defendant had a legal duty not to enter by force. The pleadings show an entry by force and damages to the plaintiff. 11 Since the matter is here on the judgment roll, we assume that there is sufficient evidence to support the verdict.
It follows that the judgment should be affirmed. Costs to the respondent.
McDONOUGH and WADE, JJ., concur. *Page 438