I dissent. It seems to me that this is essentially a case in which the status quo should be preserved by means of a temporary injunction until the trial. The property is of such a nature that its use during the winter season can be of little value, and there should be no difficulty in trying the cause before spring.
The injunction only runs to protect Rees, plaintiff corporation’s tenant, from physical expulsion under process issued in a proceeding to which he was neither a party nor privy to a party.
Summary proceedings are not a proper method of testing title to real estate. The plaintiff corporation claims to be in possession through its tenant, not in subordination to, but in hostility to defendants’ title. If it is actually in possession under a claim of title and there is no evidence to the contrary, but merely suspicion, its right to possession could not have been tried in the summary proceedings even if it or its tenants had been made parties to the proceeding, as, however, they were not. If plaintiffs really have title and have obtained possession, no matter how, they cannot legally be ousted in summary proceedings.
I am, therefore, of opinion that the order should be affirmed.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.