By the Court,
Cowen, J.It is truly said by the plaintiff’s counsel, that he proved an exclusive possession in himself; and having shown the trespass in pulling down the fences of his enclosure, he had, if he had stopped there, made out the full requisites of a recovery before the justice. But he admitted a right in the defendant to tear down the fence, which did away the effect of his enclosure, and then he sought to maintain his action by showing a change of the highway.
It is objected that the defendant could not, before the justice, be legally received to justify^ his acts on the ground that the locus in quo was a public highway, this being the establishment of a title to real estate, or at any rate raising a question.in some measure affecting the title to that sort of *375property; and that therefore it was without the jurisdiction of the justice. If the objection be sound, it strikes equally at the plaintiff’s own evidence, the great body of which res-peeled an alteration in the Dudley highway, which gave to him the absolute and unqualified right of possession and ownership, as a consequence of divesting the public right, and the oral agreement with the commissioners. The offer by the defendant was but to destroy the legal force of that evidence of title on which the plaintiff relied.
It is very difficult to separate the trial of a right of public way from that of a right to land. A summary mode of settling the question of encroachment by an adjudication of the commissioners or the finding of a jury, is provided by statute, 1 R. S. 517, 2d. ed. and penalties imposed for breach of consequent orders to remove obstructions are recoverable, independent of the question of title. See Fleet v. Youngs, 7 Wendell, 291, 299. But an action of trespass between party and party, or any other action involving an inquiry as to the existence or extent of a highway through the party’s land, respects the nature of his title, as whether it be absolute or qualified. The statute is that a justice cannot try a cause where the title to lands shall in any wise come in question; and if this appear on the plaintiff’s own showing and be disputed, the justice shall dismiss the cause. 2 R. S. 158, § 4, sub. 2. Id. 168, § 59 and 63, 2d ed. What is a title to land ? “ No title,” says Blackstone, “ is completely good unless the right of possession be joined with the right of property.” The owner of the land over which the highway runs is seized of the soil, but the defence denies his absolute right. It questions his complete title, and seeks to qualify it. In one case it was held to be an incumbrance on land within a covenant against incumbrances. Kellogg v. Ingersoll, 2 Mass. R. 97. • A doubt may be cast on that case by a remark of Spencer, J. in Whitbeck v. Cook, 15 Johns. R. 491, 492; but can it be said a man’s title is unqualified where he is rightfully shut out forever from all beneficial occupation of his land? In Heaton v. Ferriss, 1 Johns. R. 146, one plea of a right to *376a common highway, and another of a right of private way, was held in so many words to draw in question the title to lands. Which plea was it? The private way was an easement for one ; the common way an easement for the whole world. It has been held that the former must be pleaded as matter of title, in answer to an action, and that it would oust the jurisdiction of a justice- Striker v. Mott, 6 Wendell, 465, and see 15 Johns. R. 339. The statute, 2 R. S. 509, § 2, 2d ed. gives full costs to the plaintiff in courts of record, where a right of way or to an easement in any lands shall have come in question. A private way is an incorporeal hereditament. Is a public way any thing less ? In effect it is much more, and often involves questions more vexed and complicated, such as usage, prescription, dedication, the right of navigation, and the power of commissioners to take private property for public use. I never could see why it is not within both the words and spirit of the statute withdrawing investigations of title from the common magistrate. In Noyes v. Chapin, 6 Wendell, 464, Savage, C. J. calls a highway a public interest in lands.
But it is said that here the title to the highway was not drawn in question. Why then did the plaintiff give in evidence, and the justice receive the record and the agreement with the commissioners ? Was it not to show an alteration in the road ? Nay, the plaintiff conceded that the Dudley road was formerly a highway, and withdrew all claim for trespasses committed there previous to the alleged recorded alteration. All this made not an item in proof of his possession. That was complete without it. If it made any thing towards a possession, it was by way of establishing a constructive one on the ground of title. This was objectionable ; for if necessary, it was title coming from the plaintiff; disputed by the defendant, and the cause should have been dismissed. 2 R. S. 168, § 63, 2d ed. If not necessary, the evidence should have been rejected as impertinent, especially that of the agreement with the commissioners, which was met by a general objection ; and was not competent in any view.
*377The justice erred ; the common pleas were right in reversing his judgment, and their judgment must be affirmed.
Judgment of the Steuben common pleas affirmed.