The opinion of the court was delivered by
Prout, J.This is an action quare clausumfregit, the plaintiff’s declaration, alleging the breaking and entering of the plaintiff’s close by the defendant, to have been on the 1st day of May, A. D. 1865, and on divers other days and times between that day and the commencement of the suit, and the destruction of the plaintiff’s fence and gate, with formal averments appropriate to that form of action. The defendant pleaded in defence, a public right of way, and that, having occasion to use it, when, &c., he entered the locus in quo for that purpose, which, he alleges in his plea, are the same trespasses of which the plaintiff complains in his declaration. To this plea, the plaintiff demurred generally, and on the argument insists, that although the plea justifies the breaking and entering, it does not the destruction of the gate and fence; and he also insists, which is only another form of stating the legal proposition upon which he relies, that the destruction of the gate and fence is not matter of aggravation, but is of the gist of the action, and should have been answered.
The plea in its introductory averment, refers only to the breaking and entering of the plaintiff’s close, throwing down and destroying the fence and letting out the plaintiff’s cattle, &c., making no refer*167ence to the alleged destruction of the gate. Technically it does not commence as an answer to a part of the declaration, as it makes no exception as to any cause of action declared upon. It may be regarded, therefore, as a plea to the whole declaration, and, in that view, it was unnecessary to enumerate and specify the several acts of trespass, of which the plaintiff complains, much less any act or matter of aggravation. And if it only partially enumerates in its commencement the several supposed causes of action, but alleges facts, which, if true, are, in law, a justification of all that is of the gist of the action, the plea is not bad on general demurrer for that cause. But, in the other view, if we regard the allegation in the declaration as to the destruction of the gate, which is not referred to in terms by the plea, as of the gist of the action, and construe the plea as an answer to only a part of the declaration, the plaintiff should not have demurred, but should have taken judgment by nil dicit for so much as was not answered by the plea. Woodward v. Robinson, 1 Strange, 302; 1 Saund. R. 28, note 3; 3 Chitty’s Pl. 1116, note x.
But, however this may be, we think (and we dispose of the case upon this ground) that the destruction of the gate and fence is not of the gist of the action, but matter of aggravation merely. Chamberlin v. Greenfield, 3 Wil. 292. It is true they may be a part of the freehold, yet this form of action could not be maintained to recover damages for their destruction solely, without regard to the technical allegations distinguishing it from trespass de bonis asportatis. Proof of the plaintiff’s possession of the close, and the defendant’s unlawful entry is essential. Both must be alleged in the declaration, and it is upon this distinction that the two actions, although of the same general nature, are distinguished. As to what damages the plaintiff may recover, or of what elements they consist, is entirely a distinct question. No doubt a party’s right to recover, under an appropriate declaration in this form of action, sustained by competent proof, extends to the whole injury, including acts of aggravation connected with, and which accompany the principal trespass declared upon. Trees, as well as a gate or fence, are a part of the freehold, yet their spoliation or destruction may be laid in a declaration guare clausum fregit, as aggravating the damages, and a recovery *168had for their value, or to the extent of the injury done them. This view is consistent, as it seems to us, with Hubbell v. Wheeler, 2 Aik. 359, where it is expressly held that on a declaration guare clausum fregit, the breaking and entry is to be regarded as the gist of the action, and that where any matter is inserted in it, which is not the foundation of the party’s right to recover, but is matter of aggravation, it may be considered as enhancing the damages, and the plea need not answer it. If the plea justifies the breaking and entering, it is a sufficient answer to the whole declaration. Anderson v. Buckton, 1 Strange, 192; Sedgwick on Damages, 139; Goodrich v. Judivine, decided at the Caledonia county August Term, 1867.
But the question is susceptible of another view. The declaration in this case will admit of the construction, either that the matter unanswered by the plea was insisted and relied upon as aggravating the damages merely, or that it was relied upon by the plaintiff as^a distinct injury, and that he intended to recover for it. If there is any reasonable doubt as to the construction of the declaration in this particular, the defendant was at liberty to treat it as of the former character, and having done so, conceding that the plaintiff’s meaning was to insist upon the latter construction, and intended to avail himself of such injury, he should have brought it forward by a new assignment. Hubbell v. Wheeler, supra. This seems to conform with the principle laid down by Chitty, (Vol. 1, 597,) who says : “ when the plaintiff cannot deny the plea, and only insists that the defendant trespassed out of the way, or was guilty of unnecessary damage in removing an obstruction, or actually converted the materials to his own use, the plaintiff should not deny the right of way, but new assign, extra viam, &c.” Welch v. Nash, 8 East, 394; 2 Selwyn’s N. P. 1350.
The result is, the judgment of the county court is affirmed, unless the defendant desires to withdraw his plea, and plead anew on the ordinary terms. In (hat event the judgment of the county court is, proforma, reversed, and cause remanded.