The question in this case, is, whether the declaration is sufficient.
It is contended by the plaintiff, that this is an action for an injury to an incorporeal right, to which he was entitled, by prescription. But there is no averment, that the plaintiff was possessed of such right. He only alleges a possession of a certain farm, in front of which there was a certain pond ; and that, from time immemorial, the owners of the farm had enjoyed certain'privileges of the water in the pond ; not that the plaintiff was possessed of such privilege, or that it was ever appurtenant to the farm. If the plaintiff, however, had stated an incorporeal right by prescription, he should have brought an action of trespass on the case, for the disturbance : for trespass vi et armis will not lie. To maintain this action, then, it is necessary, that the plaintiff should have alleged, that he was in possession of the place where the injury- is charged to have been committed. The plaintiff insists, that though the place is not set forth expressly, yet he has alleged, that he was in possession of a certain farm, bounded on the highway, in front of which, and nearer to his land than any other person’s,is a certain pond, where the injury complained of was done ; that as he is entitled to the highway, (excepting the public easement) in virtue of being the adjoining proprietor to it, this is equivalent to an allegation that he was in possession of the locus in quo. But he might have been in possession of his farm, and another might have been in possession of the highway ; so that this does nof amount to *532an allegation, tliat he was in possession of the place where the injury was done. Of course, the plaintiff is not entitled to recover in this action.
IIosmee, J.The action brought by the plaintiff to redress the injury complained of, is trespass vi ct armis. The defend ant was summoned to answer “ in a plea of trespass and ihe casting the stones complained of into the pond, is laid to have been done « with force and arms,” and s< against the peace.” Whether the action ought to have been trespass vi et armis, or trespass on the case, is a question involving the merits of the plaintiff’s declaration. But, whether it is of one or the other species, depends not on the facts stated, but on the manner in which the suit is instituted.
It is clear beyond a question, that the facts alleged in the plaintiff’s declaration, do not sustain the action of trespass. The gist of this action is the immediate injury to the plaintiff’s possession. 1 Chitty’s Plead. 175. The intent with which the act was done, or whether the act was legal or illegal, forms no part of the criterion. Now, the plaintiff complains of no injury to his possession. He merely states an obstruction, by casting stones into a pond, which had been immemorially enjoyed by himself and those under whom he claims, for the procurement of water and manure, as he had been accustomed. The pond does not appear to be on his farm, or in his actual or constructive possession. If any suit is sustainable, it is trespass on the case. But, on this subject I express no opinion, as the point is not before the court.
The judgment complained of, in my judgment, is manifest-? ly erroneous.
The other Judges were of the same opinion.Judgment reversed.