The complaint alleges that the plaintiff, when the alleged trespass was committed, was the owner and in possession of the premises upon which the alleged unlawful entry by the defendant was made.
The defendant in his answer justifies the entry on the ground that he had an open right of way over the premises, and entered to remove an obstruction unlawfully placed therein. The plea of justification assumes that the plaintiff has a cause of action, except for the matter specially pleaded. But, aside from this, the language in the answer setting up the justification, by fair construction, admits that the plaintiff owned and was possessed of the locus in quo.
The answer alleges that the defendant was the owner of the lands lying next "northerly of the lands of the plaintiff, which are mentioned and described in the complaint;" that he has an open right of way across "the said lands of the plaintiff," granted by a former owner; that the plaintiff or some one in possession of the land within five years last past wrongfully put a gate across the way; that the defendant "requested the plaintiff to remove such gate and to discontinue the same, and he promised to do so, but wrongfully continued the same;" and that thereupon he entered and removed the gate, etc. The answer is in substance, "true; I entered your (plaintiff's) premises, but I did so to remove *Page 302 an obstruction maintained by you in a way from my lands across your lands, as I had a lawful right to do." The court was, we think, justified in treating the ownership and possession of thelocus in quo in the plaintiff, as admitted by the pleadings. The concluding clause in the answer which denies the complaint, "except as hereinbefore answered," is not a denial of the plaintiff's title alleged in the complaint, as that is answered and admitted by what precedes it.
The fact that the plaintiff failed to prove either title or possession to the locus in quo, did not deprive him of the benefit of the admission in the answer. The record is consistent with a recovery by the plaintiff, because that admits a title in him.
The plaintiff unnecessarily attempted to show that he had possession in fact at the time of the alleged trespass, and the proof, as the court held, showed that both the legal title and possession was in his wife. Assuming that the judge might under the circumstance have held that by going into proof, the plaintiff should be deemed to have waived the benefit of the admission in the pleadings; he did not do so, and no rule of law was violated in allowing the plaintiff to repose upon the admission of title, after he had attempted, but failed, to establish his title or possession by proof.
There was no exception to the direction of the verdict, and no other point is urged for the reversal of the judgment, except the one we have considered.
The judgment should be affirmed.
FOLGER, MILLER and RAPALLO, JJ., concur; ALLEN, J., dissents; CHURCH, Ch. J., not voting; EARL, J., not sitting.
Judgment affirmed. *Page 303