Real action to recover a cemetery lot. The presiding Justice who heard the case, with right of exception, gave judgment for the plaintiffs, and the case comes up on defendant's exceptions.
*263In a real action the demandant must prove that he has such an estate in the premises as he has alleged. If it appears that he has an estate less than that alleged, the action cannot be sustained without an amendment. Rawson v. Taylor, 57 Maine, 343; Hamilton v. Wentworth, 58 Maine, 101, 105-6; Forsythe v. Rowell, 59 Maine, 131-133.
In their declaration the demandants claim an estate in fee. The presiding Justice, however, found that they did not have “an absolute title in fee, but only an easement to bury the dead upon said lot so long as the ground continued to be used as a place of sepulture.” Accordingly, without an amendment, the action was not sustainable upon the Justice’s findings as to the character and quality of the demandants’ estate in the premises. As no amendment was made, and a judgment was rendered therein only for said easement in the premises, the entry must be.
Exceptions sustained.