Bartlett v. Prescott , 41 N.H. 493 ( 1860 )

Bell, J.

The motion to dismiss the action for want of jurisdiction was properly denied. The plea of right of way raised a question of title in the easement claimed, and easements are real estate at common law — 2 Bl. Com. 20 — as well as by the terms of our statute. Rev. Stat., ch. 1, sec. 17. This point was expressly decided in Pritchard v. Atkinson, 4 N. H. 293.

The question whether the defendant must be confined to his plea of title, arose in the case of Janvrin v. Scammon, 26 N. H. 362; and the court there held, in opposition to what had been a prevalent impression, derived from decisions in Massachusetts, that a defendant, who desires to avail himself of title to real estate as a defence, may plead, in these actions of trespass, the proper plea to oust the jurisdiction of the justice, and transfer his action to the court above, and with it may plead the general issue, and plead or give notice, by a brief statement, of as many grounds of defence as he thinks fit, and upon the trial in the court above he may avail himself of any defence, which he could do, if the action was commenced then in the usual manner. See Foster v. Lane, 30 N. H. 317.

The ruling of the court in relation to the license is in accordance with the decisions in this State and elsewhere. Every mere license is in its nature revocable. Carleton v. Redington, 21 N. H. 291; Cowles v. Kidder, 24 N. H. 364; Marston v. Gale, 24 N. H. 176.

Though it has been held in this State that a license to do acts on land, which are attended with expense — as to build a bridge — Ameriscoggin Bridge v. Bragg, 11 N. H. 102; or a mill dam— Woodbury v. Parshley, 7 N. H. 237; and see Sampson v. Burnside, 13 N. H. 264 — could not be revoked without compensation ; yet here there is no proof of any expenditure upon the land to bring it within that class.

Whether it could properly be regarded as a fraud for a party who should encourage another to purchase property, by giving a license to haul wood from it across his land, when the proposed purchaser would not otherwise buy, to revoke his license after the purchase, and before its purpose was answered, is a question not raised by the case, and need not now be considered.

The doctrine that a new assignment is a waiver of the cause of action, justified by the plea is well founded, but the objection taken here rests upon a misapprehension as to the limit to which that doctrine applies or extends.

It is a well settled doctrine of our court, that each plea and pleading stands on its own ground, and is not affected by any other plea, and the admissions made in pleading one plea, or found in one set of pleadings, cannot be used as cause of demurrer, or as matter of evidence, in issues joined in other pleadings. Cilley v. Jenness, 2 N. H. 89; Chapman v. Sloan, 2 N. H. 464; Kimball v. Bellows, 13 N. H. 68; Buzzell v. Snell, 25 N. H. 480; Bump v. Smith, 11 N. H. 48. The waiver, then, of the cause of action justified by the plea, to which the new assignment is made, is to be regarded only in considering the questions arising on those pleadings. Any different rule would, to a great extent, defeat the use of double pleas.

The question apparently designed to be raised by the demurrer is this, whether the owner of land, who has, for himself and his tenants and occupiers, a right of way across a neighbor’s land to the highway, for the convenient occu-paticm of his land, can transfer to another a right to use this way to haul off the timber and wood growing on his land, to whom he had sold the trees with such a privilege to haul them off.

This question must be answered, we think, in the affirmative. As the owner of the land has himself the right to use the way to haul off his wood and timber, as well as for any other purpose, he may, by a sale of the timber with a right to remove it, give the purchaser the same right which he has himself to use the way. The buyer is to be regarded as, for this purpose, the tenant of the land, and entitled as such to use the way.

The plea in this case shows the facts necessary to establish this, though in an informal way.

It is alleged that S. Plumer, and those whose estate he had in this land, had had, from time immemorial, a right of way across the plaintiff’s land from his land to the highway, for the convenient occupation of it, for themselves, their tenants and occupiers; that Plumer sold to S. Prescott the wood, timber, and trees growing on this lot, with a right to enter and remove the same; that the defendants were servants of S. Prescott, and entered by his direction to remove the wood and timber. And this, properly alleged, makes a good title.

The difficulty with the plea is, that no right is alleged, in Plumer or Prescott, to use the way by their own servants, or the servants of tenants. It is of course to be taken that the pleader has stated the defendants’ right as strong as it will bear, — and, as stated, it does not reach the case of these defendants. The court cannot say that a right of way of course extends to servants. It may be, either by grant or prescription, the personal right of the owner and his tenants, and servants may have been expressly excluded. The plea, therefore, fails to show a good defence for these defendants, and it was, consequently, properly overruled.