In this action to enjoin defendant from obstructing a right of way across'liis premises, upon the trial the plaintiffs stated that they “ did not claim any public right of way, nor any personal, private right of way on behalf of the plaintiffs, but only for a right of way appurtenant to the plaintiffs’ lands.” Thereupon the court held the com. plaint insufficient, for the reason that it did not describe the lands to which it was claimed the right of "way was appurtenant. In all other respects the complaint is concededly sufficient. .
The complaint showed that the right of way described came up to and bordered upon the plaintiffs’ “ Palmer one-liundred-acre lot,” and that it was a convenient and necessary means of communication between and across the lands of the plaintiffs in said town, and for that reason was a suitable appurtenance to said lands. The naming of the plaintiffs’ Palmer one-hundred-acre lot, and their other lauds in said town, is a sufficient description of the lands to which .said *283way is appurtenant to enable the plaintiffs to maintain their action when the objection is raised for the first time upon the trial. The fact that a complaint is indefinite and uncertain does not justify its dismissal. The Code of Civil Procedure (§ 546) has provided a remedy to cure such, a defect.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.