Carpenter v. Smith

Graves, J.

The plaintiffs in error acting under authority of the officers of the school district proceeded to remove the school house from the site it had some time occupied, and defendant in error who held the fee simple of the site sued them in trespass. The case was sent to a referee, who found the facts and held as matter of law that Mrs. Smith was entitled to judgment for five dollars and costs of suit. The circuit court affirmed the report and entered judgment accordingly, and defendants brought error.

The case appears plain. It is true Mrs. Smith had not leased the site, and in fact claimed the building and the right to enter. But the finding, we think, is clear that at the time of the alleged trespass, and for some years prior thereto, the district was in the actual entire and undisturbed possession.

Such being the ease, the act of the plaintiffs in error under the authority of the district was not an act of *641 unlawful force or of trespass against Mrs. Smith or any body else. Her possession was not disturbed, because she had none. The action was not maintainable. 1 Chitty’s Pl. [16 Am., from 7 Eng. ed.], pp. 71, 72 et seq.; Cooley on Torts, 437, 438; 1 Addison on Torts, 302, 289, 290; 2 Hilliard on Torts, 14.

The judgment must be reversed, and one entered here for plaintiff in error with costs of both courts.

The other Justices concurred.