Hall v. Henninger

Weaver, J.

(dissenting). — ’The facts stated in the petition and established without substantial controversy by the testimony show beyond all doubt that plaintiff is legally entitled to the possession of the land, and that defendant is not entitled to it. It is further disclosed that defendant lias interfered on several occasions and threatens continued interference to prevent the plaintiff’s enjoyment of such possession. This state of facts makes a case which entitles the plaintiff to a remedy of some kind at the hands of the court. If he invokes the aid of equity when his proper remedy is at law, or vice versa, the mistake in selecting the forum neither bars nor abates the action; nor does it afford grounds of demurrer to his petition nor justification for its dismissal. See Code, section.3432; Byers v. Roda*242baugh, 17 Iowa, 53; Gibbs v. McFadden, 39 Iowa, 371; Riddle v. Beattie, 77 Iowa, 168; Martin v. Davis, 96 Iowa, 718. If an action brought in equity involves properly only an issue at law, it may be transferred on motion to the proper forum for trial; but, if such motion be not made, the court may retain jurisdiction and administer relief in equity. Code, sections 3432-3434. This rule has been applied to controversies between landlord and tenant over the possession of real estate. Gibbs v. McFadden, supra; Martin v. Davis, supra. Injunction may issue even in a law action under the practice of this state. Code, section 4354. It is true an equitable action for injunction ■ will not be allowed as a substitute for an action of right or ejectment, but the writ will often be granted to protect the right of possession. Mills v. Hamilton, 49 Iowa, 105; Ten Eyck v. Sjoburg, 68 Iowa, 625; Gibbs v. McFadden, supra.

It is, in my judgment, a misconception of the record to say in this case that Hacine had possession of the land after March 1, 1908, or that an adequate remedy by action of forcible entry and detainer' was open to the plaintiff. Hacine had formerly occupied and used the land as a tenant of his mother, who was herself a 'life tenant thereof. She died prior to March 1, 1908, and his right of possession under her ceased not later than that date. Hacine’s tenancy of this tract after removing the crop of 1907 was constructive only, as he did not live upon the land and had no property kept or stored thereon, and his constructive possession expired with the expiration of' his term and the death of his mother. That fact being established, the further fact that he was in actual possession of the adjacent tract, or of the buildings thereon, is not of the slightest materiality, for from the time when the ownership and right of possession were severed on the 1st day of March he had no more right to cross the division line and assume to exercise any control of said land than any *243other stranger to the title. The evidence shows that on two or three occasions after the date named Hacine did go upon this land and undertook to do a little work thereon, but such possession or partial possession as he then had was that of a trespasser only and ceased the instant he retired therefrom. If these trespasses were repeated and accompanied by threats of repetition or exclusion of the rightful owner, such conduct affords an abundant justification for the remedy by injunction whether the action be called one at law or in equity. In addition to the oases already cited, see Alden v. Challis, 103 Ill. App. 52; Lembeck v. Nye, 47 Ohio St. 336 (24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828) ; Wheelock v. Noonan, 108 N. Y. 179 (15 N. E. 67, 2 Am. St. Rep. 405); Railway Co. v. Sullivan, 177 Mass. 230 (58 N. E. 689, 83 Am. St. Rep. 275) ; Chambers v. Haskell (Ky.) 78 S. W. 478.

So, too,- the fact that a legal remedy exists will not exclude the jurisdiction of equity if the remedy at law is inadequate. Here we have a defendant who is an incompetent and appears by guardian. He is a persistent trespasser and threatens to continue his incursions upon the plaintiffs premises. The irresponsible character of the man, while it does not exempt him from liability for injuries inflicted upon another, renders it difficult to treat with him. The land is agricultural in character, and possession must be had promptly at the opening of the season and continued without interruption from seedtime to harvest if the person entitled thereto is to avoid injury or loss, which is to a large degree irreparable. The owner can not be expected to stand at the border of his land constantly oh guard against a persistent intruder. Eepeated recovery of damages is a very inadequate remedy in such cases. Under the conditions of this case forcible entry and detainer would be a fruitless proceeding. To such an action the defendant who, as I have already suggested, is at most a marauder, who makes more or less frequent *244forays across the border, would have only to say, “I am not in possession” to render the proceeding absolutely nugatory. In such an action no question of title can be considered. The court before which it is pending can only inquire whether the defendant is in possession,- and, if so, whether such possession is wrongful as against the plaintiff, and upon finding these questions in the affirmative may enter judgment for the issuance of a writ to evict the wrongdoer; but, if there be' no actual physical possession from which he may be evicted, the 'court is powerless to apply any remedy. It can not attempt to control constructive possession, for that can be done only by inquiry into and adjudication of questions of title, or, at least, of rights, which can not 'be put in issue in this summary proceeding. Neither has the court any power in this proceeding to -assess damages for the wrongs, if any, which the plaintiff may sustain by reason of the acts of the defendant. It has been said by the Supreme Court of the'United States that it is not a sufficient objection to say that the plaintiff has a remedy at law; but such remedy must be plain and adequate. “It must be as practical and efficient to the ends of justice and its administration as the remedy in equity.” Boyce v. Grundy, 28 U. S. 215 (7 L. Ed. 655) ; Irwin v. Lewis, 50 Miss. 363.

Again, the proposition of the majority opinion that because action against the defendant was not begun within thirty days after March 1, 1908, he thereby became a tenant at will of the premises, and that in order to evict him such tenancy must be terminated by a thirty days’ notice under the provisions of Code, section 2991, is to my mind clearly erroneous. In the first place, by the express terms of that section the requirement of thirty days’ notice has no application whatever to the tenancy of farm lands except as hereinafter mentioned. Tenancy at will of all such lands arises where the tenant is in possession from year to year under no agreement as to the period of lease, *245and such tenancy can be terminated by the landlord only by notice duly served, to expire the 1st day of March; and, in the absence of such notice, the tenant may hold another year, unless the title of his lessor be of a terminable character and expires at an earlier date. But the same statute provides that, where the lease is for a fixed or stated period, or term expiring at an agreed date, the tenancy ceases by operation of law on that date without notice of any 'kind. Defendant’s tenancy was concededly under a lease from his mother, which expired not later than March 1, 1908, and plaintiff was not required to serve notice to terminate his right of possession. There is not the slightest pretense that plaintiff consented to the renewal of defendant’s tenancy, but, on the contrary, it is conceded that defendant refused the terms • demanded of him. He is not and never has been a tenant at will of the premises. To say, as does the majority opinion, that this defendant, whose right to the possession of the property had ceased both as a matter of contract and by operation of law, is a tenant in possession, and not a trespasser, simply because he at times intruded himself across the line and set up an admittedly baseless claim of right, is to confound the meaning of words and give free rein to lawlessness..

It is proper, also, to note the fact that, since defendant’s term expired and this controversy began, an entire year has intervened. To reverse the decree below, which clearly effectuated justice between the parties, is 'to reopen’ and prolong vexatious litigation for the benefit of an imprudent trespasser without any apparent good reason therefor. In my judgment the decree should stand. If defendant was advancing any apparently bona fide claim of title to this land, we could well afford to examine and consider it with patience; but, as it is, the defense, so far as is disclosed by the record, is so clearly devoid of merit that •to reverse the conclusion of the district court' and give to *246the controversy a new lease of life is little less than an absolute denial of justice.

I would affirm the decree of the district court.

I am authorized to say Evans, C. J., concurs in this dissent.