Strout v. Berry

tn trespass quare clausum frcgit, brought before a justice of the peace, the defendant cannot give evidence of a right of way under the general issue. Such a right of way used for twenty years before the supposed trespass is a sufficient defénce.

This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, upon an appeal from the judgment of a justice of the peace, before whom the action was commenced; in which the defendant in error was original plaintiff, and the plaintiffs in error original defendants. The action was trespass for breaking and entering the close of the plaintiff in Limington, and prostrating two rods of his fence. The defendants severally pleaded not guilty, with a reservation of liberty “ to file any brief statement, or give any justification under this issue.” Issue being joined, the judgment of the justice was against the defendants, who appealed therefrom to the Common Pleas, and the cause was tried in that court upon the same issue. At the trial, after the plaintiff had proved the trespass as alleged, the defendants offered to prove, by the testimony of witnesses, that the locus in quo was a private way, and that it had been uninterruptedly used and occupied as such, by the defendants and others, for twenty years next before the commencement of the plaintiffs’ action The court refused to admit the evidence, and directed the jury, that, in all actions of trespass quare clausum fregit, originally commenced before a justice of the peace, if the defendant intends to contest the plaintiffs’ title to the close wherein the supposed trespass is alleged to have been committed, or to show a title to the same in himself, he must inform the justice thereof by a special plea, or in some other way; in which case the cause ought to be removed to the Court of Common Pleas; otherwise he will have no right to contest the plaintiff’s title, or to justify by setting up a title of his own. * The jury returned a verdict for the plaintiff, and the [ * 386 ] defendants tendered a bill of exceptions to the opinion and direction of the court, and the same was allowed and sealed by the first justice. The errors assigned were in substance the refusal of the court to receive competent evidence of a right of way offered by the defendants, and the misdirection of the court to the jury.