Ferris v. Brown , 3 Barb. 105 ( 1848 )

By the Court,

Strong, P. J.

ítisnot necessary to decide whether the alleged contract would, if it had been proved, have conveyed to the parties any definite right to the use of the saw mill. The defendants abandoned their claim under that, and set up a right by prescription! , The admission of that defence could not be claimed under the notice subjoined to their plea. The fights claimed, and the facts to establish them, were essentially variant. It was not contended on the argument, that proof going to establish a prescriptive right to the use of the mill could be received Under that notice; but it was said that it was admissible under the plea of the general issue. It is undoubtedly true that in trespass quafe clausum fregit the defendant may, under that plea, give in evidence libefum tene-mentum, or the right of possession in himself or those under whom he claims. In this case, title in the defendant is not pretended. It is supposed, however, that the prescription claim‘ed would, if proved, have established the right of possession in them. The right of possession which may be given in evidence under the general issue must be general, and exclusive of any superior 'claim of the plaintiff as to the whole or the same part of the premises. It must not be confined to a particular purpose, such as the enjoyment of a privilege conferred by an incorporeal hereditament. The former, when established, disproves the plaintiff’s right of action. The latter does not. It merely shows that it is subject to a 'qualification; and that is a fact to be established affirmatively on the defence. An exclusive right of possession cannot be established by prescription. A qualified right for a particular purpose may be. Blackstone says, (4 Com. 264,) that nothing but incorporeal hereditaments can be claimed by prescription, but that no prescription can give a title to lands and other corporeal substances of which more certain evidence may be had. Judge Thompson says, in Cortelyou v. Van Brundt, (2 John. Rep. 362,) that prescription will not in any case give a right to erect a building on another’s land. This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription. Title to land requires the higher evidence of corporeal seisin and inheritance. Prescription applies only to incorporeal hereditaments. The defendants are then brought within this dilemma : If what they claim in the plaintiff’s land was of-a higher character than an incorporeal hereditament, it could not be established by prescription. If it was an incorporeal hereditament they could not prove it under the plea of the general issue. Williams, in his note to Saunders’ Reports, (2 Saund. Rep. 402, n. 1,) says, “It seems to be an established rule, whenever the defendant in trespass quare clausum fregit justifies the trespass by reason of some title or easement which gives him a legal right to do the act which is the subject of the action, he must set forth his title or right to enjoy the easement, specially, so that the plaintiff may have an opportunity of traversing it.” Chitty says, (2 Chit. Pl. 495,) “ a justification under a rent charge or in respect of any easément or incorporeal right, must be pleaded.” And Starkie says (3 Stark, on Ev. 1462) that the defendant cannot, under the general issue, give in evidence a right to an easement; and he quotes Hawkins v. Wallis, (2 Wils. Rep. 173,) where it was claimed that the easement had been exercised for thirty-years.

We think that the judge decided all the points raised before him correctly, and the motion for a new trial must be’denied