*23On Petition for a Rehearing.
Mitchell, C. J.In support of the petition for a rehearing, the learned counsel argue with much force and plausibility, that the transient possession of lands by a trespasser can neither be peaceable possession nor right of possession. Conceding this, it is nevertheless aside from the real question involved. It was averred in the complaint that the plaintiff was in the lawful and peaceable possession, and occupying the land in dispute with his family, claiming as tenant from year to year, and that the defendant with force and violence evicted him. This rebuts all presumption that he was a mere trespasser. What we hold in the principal opinion is, that this is the averment of such lawful peaceable possession, under a claim of right, as gives the person so in possession the “ right ■of possession ” as against a forcible invasion.
We agree with counsel that the complaint must show a right to possession, but that right, within the contemplation of the statute against forcible entry and detainer, is shown in this case by the averments above mentioned, and against a person so in possession, another may not set himself to be judge, and, having decided in favor of himself, execute his own judgment by force.
The circumstances under which an intruder may be expelled are not determined in the opinion, for the reason that no such case is presented by the record before us. Upon this subject see Cooley Torts, 323, 324.
We think no inference can be drawn from anything said in the principal opinion, that one who intrudes upon the possession of another may not be removed by the person rightfully entitled, even by force,, if prompt action is taken to that end. This is nothing more than defending one’s possession .against intrusion from others.
It is claimed that the evidence does not sustain the verdict, because there is no proof that the plaintiff ever had possession of, or was evicted from anything but the house. *24The evidence tended to show that the plaintiff rented the house of, and was put in possession by, one VanReed. Whether he rented the ten acres of land belonging with the house is left to inference. There was no direct evidence on the point.
Filed June 13, 1885.There was a general verdict for the plaintiff and an assessment of $20 damages, and upon this the court rendered judgment, awarding a writ of restitution to the plaintiff for the house and land described in the complaint. The court was asked by motion to modify the judgment, so as to make it a judgment awarding damages only. This motion was overruled, and we think properly. •
We think it is fairly inferable from the testimony, that the plaintiff had rented, and was in possession of, the land as well as the house. He testified as follows: “ I moved into the property in controversy; it is a frame house of six rooms ; there are ten acres of land; there is a barn, smoke-house and orchard.” On cross-examination, he testified: “ I told Mr.. Judy I rented of Byron VanReed; he said, ‘I want you to understand these are my premises and you have no right here.’” VanReed testified: “I had occupied premises; I put Citizen in dwelling; I reserved two rooms in house; had my things in them; * * * on the ten acres there was a dwelling, well, barn and smoke-house.” The property is described in the complaint as consisting of a dwelling-house,, out-buildings and ten acres of ground. The witnesses speak of it as the “property in controversy,” the “premises,” etc.,, and as against the verdict of the jury, we can not say there was no evidence that the plaintiff was in possession of the premises in controversy.
The petition for a rehearing is overruled.