Smith v. Wiggin , 51 N.H. 156 ( 1871 )

Ladd, J.

The first objection, that the declaration ought to show in what mode the plaintiff acquired her right to the way in question, — • whether by prescription, grant, or necessity, — cannot be sustained. The important allegation is, that she had title to the easement. The particular facts upon which that title rests, — whether deed, descent, record, or user, — are matters of evidence, and need not be pleaded. 1 Ch. Pl. 225, 540. The defendant’s counsel, in his brief, says, — “it is important that, when judgment is rendered, if for the plaintiff, it shall show what her title to the way is.” We do not see in what view this is important: the title by which a man holds his estate is, in general, of no importance to strangers ; besides, nothing can be settled by the judgment between the parties except the issue tried between them. Controverted matters of evidence do not pass in rem judioatam by the judgment. King v. Chase, 15 N. H. 9.

There is no reason why the plaintiff should be required to aver in her declaration that she is entitled to the right of way by reason of her seizin and possession of the land. This might be requiring her to make a false allegation. Her title may rest upon some other fact, as a license; and if that be so, a false description of the right would be improper, and could not be supported by the evidence which she would have to offer at the trial. Fentiman v. Smith, 4 East 108; Lamphier v. Worcester Nashua R. R., 33 N. H. 505.

The second objection is, that the first count is defective, because it gives but one terminus to the way; and the second and third, because the plaintiff’s premises are not described in them, — and that neither can be aided by a reference to the others.

But the plaintiff does not claim the way as appurtenant to her land, or by reason of her possession of the premises described in the first count: the description of those premises might be stricken out of that count as surplusage. Lamphier v. W. & N. Railroad, before cited. The second and third counts contain a sufficient description of the way; and if they contain no description of the plaintiff’s premises, for the reason suggested by the defendant that one count in a writ cannot be aided by reference to another which is bad on.demurrer, that is of no consequence here, because the matter in the first count, to which reference is made in the second and third, is unnecessary, and need not be stated at all in either count.

With these views, we have not thought it necessary to consider whether the description of the way in the first count is sufficient or not.

Demurrer overruled.