Smith v. Wiggin

Nesmith, J. The general rule is, that the right of the public or of individuals to the use of land of others for a precise and definite purpose, not inconsistent with a general right of property in the owner of the soil, is, in contemplation of law, an easement or franchise, and not a right of property in the soil, even though it deprive the owner of all useful or available beneficial interest in the land. Harback v. Boston, 10 Cush. 297. If such easement be a right of way, this consists in a right to use the surface of the soil for the purpose of passing and re-passing, and the incidental right of properly fitting the surface for that use; but the owner of the soil has all the rights and benefits of ownership, consistent with such easement. The right to a fee and the right to an easement in the same estate are rights independent of each other, and may well subsist together, when vested in different persons. Each can maintain an action to vindicate and establish his right; the former to protect and enforce his seisin of the fee; the latter to prevent a disturbance of his easement. Morgan v. Moore, 3 Gray, 319; Runnington on Ejectment, 130; Hancock v. Wentworth, 5 Met. 450; Kent’s Com. 432; Jackson v. Hathaway, 15 Johnson, 452; Goodtitle v. Allker, 1 Burrows, 143; Shepard v. Baker, 24 N. H. 208. The general rule of practice appears to be, that the action of eject- . ment will not lie for an easement, which is not a .title to or an interest in.law. This action lies only for something tangible-of which posses-1 sion may be delivered by the sheriff, and not for an incorporeal hereditament lying merely in grant. 2 Bacon Abridg. 417; Adams. on Ejectment, 16; 3 Blackstone Com. 199, Note 1; Lillie’s Prec. 677; Runnington on Ejectment, 25 ; 1 M. & W. 201; Smith v. Slocum, 11 Gray, 280; 16 Johns. 184; Turnpike Company v. Smith, 15 Barb. 355; 19 Barb. 484; 2 B. & A. 652; Graves v. Amoskeag Company, 44 N. H. 462; Judd v. Leonard, 1 Chip. Vt. 204. In this easement case, plaintiff’s private way was interrupted by a building erected thereon by defendants who owned the fee adjoining plaintiff’s way. Plaintiff brought ejectment.. Held that such form of action could not be maintained. An action of 'ejectment will not lie against one claiming an easement in a parcel of land, to try his right to enjoy the same. Washburn on Easements, sec. 2. The author specially refers to Child v. Chapell, 6 Selden, 246. We find the great'weight of authorities to be against the maintenance of this form of action, as a remedy for plaintiffs. The more approved remedy for the disturbance or interruption of plaintiff’s right of way is the action of trespass, on the case. Mayhew v. Norton, 17 Pick. 337; Cushing v. Adams, 18 Pick. 114; 7 Gray, 198; Jamaica Pond Aqueduct Company v. Chandler, 9 Allen, 159; and other authorities quoted ante. Trespass, also, has sometimes been main [110] tained according to the nature of the injury sustained. Robbins v. Bonner, 1 Pick. 122. The public remedy for an injury in a public highway is well understood to be by punishment or indictment. 5 Coke, 73; 8 Coke, 113. An amendment here, to be effectual for plaintiffs, must be equivalent to a new form of action, and therefore must be denied. Little v. Morgan, 31 N. H. 499; Lawrence v. Langley, 14 N. H.70. As before seen, however, if plaintiffs are owners of the land over which the right of way is established, the plaintiffs can maintain their writ of entry for the recovery of the land demanded in their writ: at least there are some strong authorities in favor of such right of action. The demand-ant in a writ of entry, must demand a freehold. It follows, that the tenant, against whom the action is brought, must be seized of a freehold. But if a writ of entry be brought against one who is not seized of the freehold, he can make the objection only by disclaiming or pleading non tenure. Stearns on Beal Actions, 175; Higbee v. Rice, 5 Mass. 352; 8 Cranch, 243. In Goodtitle v. Allker & al., 1 Burrows, 143, Lord Mansfield says that, under the general issue, the defendant cannot show that the land demanded is a highway. If the defendant plead the general issue, such a plea is an admission of his capacity to defend the suit as tenant of the freehold. Spinney v. Spinney, 8 N. H. 477; Cochecho Manufacturing Company v. Whittier, 10 N. H. 305. In Allen v. Murdock, 13 Mass., being a writ of entry where the defendant relied upon a right of way, and the-tenant pleaded nul disseisin, the court say, if the tenant would have availed himself of his right of way, he should have pleaded a special. non-tenure in abatement of plaintiff’s action. But, as the tenant made 'full defence to the action, he admitted the possession of the soil to be in ¡himself, therefore demandant must prevail. See also Miller & al., v. Miller, 4 Pick. 244; Mills v. Paine, 2 N. H. 10. Any matter of justification, arising out of any authority or any easement, must be specially pleaded, or special notice should be given thereof to the demandant. 1 Chitty’s Pleadings, 492; 2 Saunders, 402, note; Babcock v. Lund & Doty, 1 Cow. On the last assumed ground the plaintiffs have no occasion to amend their declaration. The defendant’s plea may be insufficient, but the plea may not be called in question if the plaintiffs do not own the soil where the building stands ; for, manifestly, plaintiffs cannot maintain this action in this State to recover a mere right of way. Graves v. Amoskeag Company, ante.