Tbe action was continued for advisement, and the opinion of the Court, at a succeeding term, was delivered by
Weston C. J.We are of opinion, that the right of ingress and egress, for the removal of bis property in the bouse, reserved in tbe lease made by tbe defendant to Ilodgman, and the reservation of the right to have a man cook and board in the house, to feed out the hay in the bam belonging to the defendant to his cattle, did not constitute the defendant a tenant in common in the estate. It was a privilege reserved for a temporary purpose. If it might be exercised even forcibly, against the will of Ilodgman, or those claiming under him, by the defendant without being charged as a trespasser, it gave him no interest in common in the estate. It was not in its nature tangible or capable of partition. Whether it had the character of an easement, or by what remedies it might be enforced, it is not now necessary to decide. It does not support the brief statement, in which the defendant avers, that he is tenant in common with the plaintiff.
Had the defendant entered the house, even with force if necessary, for the purpose of removing his grain, we are not prepared to say, that trespass could have been maintained against him. That right he had reserved to himself, when it belonged to him to prescribe, on what conditions ho would part with his interest. But it is very manifest that his object was to put the officer, having an execution in his favor against the plaintiff, into the house; and there is reason to believe, that the removal of the grain at that time, was to give color of right to the transaction. He claimed access for the officer, and called upon him to break the door; and when he declined, the defendant forced an entrance for him. The plaintiff had before offered to deliver to the defendant any articles of his own, he might desire to remove from the house. It appears to us, that the defendant has made out no justification for the act, with which he is charged, but that an entry was forced through the outer door of the plaintiff’s house without right, and against law, to enable the officer to serve therein civil process.
Defendant defaulted.