Fort Dearborn Lodge No. 214 v. Klein

Citations

• 115 Ill. 177

Syllabus

<p>1. Trespass quare clausum fregit—when the action will lie—and herein, of the right of the owner to make entry. The action of trespass quare clausum fregit never lies except for an injury to the possession of the plaintiff.</p> <p>2. Where the owner of land, having the right to the immediate possession, makes an entry thereon in a quiet and peaceable manner, or without actual force or violence, he is not liable in trespass to one who has neither the right of property nor a right to the possession. In such case the plea of liberum tenementum presents a complete answer to the action.</p> <p>3. The first section of the Forcible Entry and Detainer act, “that no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter by force, but in a peaceable manner, ” is a recognition of the common law remedy given the paramount owner entitled to possession, to redress himself without legal process, but limits his entry to a peaceable one. The word “force” is to be construed actual force.</p> <p>4. Same—liberum tenementum.—whether it is a proper plea, and of its nature and effect. The plea of liberum tenementum is a proper plea in an action of trespass quare clausum fregit, and it is error to instruct the jury to disregard the same when pleaded. °</p> <p>5. The plea, as one of confession and avoidance, in legal effect admits such a possession in the plaintiff as would enable him to maintain the action against a wrongdoer, and asserts a freehold in the defendant, with a right to immediate possession as against the plaintiff.</p> <p>6. Same—replication to such a plea. To a plea in an action of trespass quare clausum fregit, that the locus in quo was the soil and freehold of the defendant, and that he and his servants peaceably entered the same for the purpose of building a partition wall, etc., the plaintiff may reply that at the time of the alleged trespass he was in the lawful possession of the premises