The opinion of the Court was delivered by
Ford, J.
To an action for entering the plaintiffs close and pulling down and removing his fence, the defendant pleaded the general issue and gave notice with it of the-special matter which he intended to offer in evidence; which matter must bo such according to the rule of the statute (Rev. .Laws, 404, see, 2) as “if pleaded would be a bar to the action.” The plaintiff therefore moves to strike out so-[158] much of the first notice as alleges a right of high way over lands that are adjoining to the locus in quo; and as no interest is claimed by the plaintiff or trespass assigned in those adjoining lands, and a right of way over them, supposing it to be conceded, would be no justification for an entry on the plaintiffs close, the matter appears to be foreign to the complaint and must be stricken out.
The remainder of this notice is to the following effect: that the close in question was the soil and freehold of one Rulif Van Wagoner who died seized; that no assignment of dower in the estate had been made to Sarah his widow by the heir; that therefore she held possession of the locus in quo as part of the plantation belonging to the mansion house of her husband at his death, and that the defendant entered and removed the fence as her servant by her command. The widow has a right by statute "to hold and enjoy the mansion house of her husband, and the messuage or plantation thereto belonging, until dower be assigned;” (Rev. Laws 397, sec. 2) and the estate thus given to her is not a common law quarantine of forty days, but a freehold for life unless sooner defeated by an act of the heir. Now in what other way could her estate be pleaded than by shewing its commencement and the channel through which it is derived to her ? Had she pleaded liberum tenementum in the heir and a tenancy under him, she could not have made out her case because the heir had not assigned any lands for her dower. It is said that dower is a kind of subtenancy to the heir, and so it is; but the tenancy is never completed till investiture or assignment (2 Bl. Com. .136.) It is true that the freehold is alleged to have been in a person who is deceased, and the name of the heir is not mentioned; but I can perceive no use in mentioning the name of the heir when she does not hold by his assignment, but claims an estate under the statute, and has set out that estate sufficiently in the notice.
Another notice is to the following effectthat the free[159] hold being in one John Van Wagoner, the defendant entered and removed the fence by his “ command, authority, license or permission.” Now as these disjunctives would render any plea vicious for uncertainty they must vitiate a notice for the same reason. The substitution was not designed to allow a greater latitude of proof; the test of a good notice being that the matters therein contained can be specially pleaded; its privilege consists in an exemption from the forms and formalities of a plea, but it must contain all the substance and certainty of one as to the facts or. matter's proposed tobe given in evidence. Now possession is a good title for the plaintiff to hold against all the world but the right owner; and if it be conceded that John Van Wagoner is that right owner, still no stranger can set up the title for him without his command; therefore, command is the proper word, and the defendant must strike out “ authority, license or permission,” or loose his notice; for if they mean the same thing as command they are superfluous and may be very embarrassing to the court and jury, and if they mean a different thing they are clearly illegal. I do not mean to say what evidence will or will not amount to a command; it must necessarily be left to the court and jury to determine on the sufficiency of it when it is produced at the trial.
The fourth notice alleges a custom in Aquackanunck for the inhabitants of the town to take their cattle over the locus in quo to water; the sixth alleges a custom for all persons taking lumber to Aquackanunck for market, to store it on the locus in quo till it shall be carried on board of vessels for transportation to market; and the seventh alleges a prescription in the que estate for a right of way to water over the locus in quo.
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The opinion of the Court was delivered by
Ford, J.
To an action for entering the plaintiffs close and pulling down and removing his fence, the defendant pleaded the general issue and gave notice with it of the-special matter which he intended to offer in evidence; which matter must bo such according to the rule of the statute (Rev. .Laws, 404, see, 2) as “if pleaded would be a bar to the action.” The plaintiff therefore moves to strike out so-[158] much of the first notice as alleges a right of high way over lands that are adjoining to the locus in quo; and as no interest is claimed by the plaintiff or trespass assigned in those adjoining lands, and a right of way over them, supposing it to be conceded, would be no justification for an entry on the plaintiffs close, the matter appears to be foreign to the complaint and must be stricken out.
The remainder of this notice is to the following effect: that the close in question was the soil and freehold of one Rulif Van Wagoner who died seized; that no assignment of dower in the estate had been made to Sarah his widow by the heir; that therefore she held possession of the locus in quo as part of the plantation belonging to the mansion house of her husband at his death, and that the defendant entered and removed the fence as her servant by her command. The widow has a right by statute "to hold and enjoy the mansion house of her husband, and the messuage or plantation thereto belonging, until dower be assigned;” (Rev. Laws 397, sec. 2) and the estate thus given to her is not a common law quarantine of forty days, but a freehold for life unless sooner defeated by an act of the heir. Now in what other way could her estate be pleaded than by shewing its commencement and the channel through which it is derived to her ? Had she pleaded liberum tenementum in the heir and a tenancy under him, she could not have made out her case because the heir had not assigned any lands for her dower. It is said that dower is a kind of subtenancy to the heir, and so it is; but the tenancy is never completed till investiture or assignment (2 Bl. Com. .136.) It is true that the freehold is alleged to have been in a person who is deceased, and the name of the heir is not mentioned; but I can perceive no use in mentioning the name of the heir when she does not hold by his assignment, but claims an estate under the statute, and has set out that estate sufficiently in the notice.
Another notice is to the following effectthat the free[159] hold being in one John Van Wagoner, the defendant entered and removed the fence by his “ command, authority, license or permission.” Now as these disjunctives would render any plea vicious for uncertainty they must vitiate a notice for the same reason. The substitution was not designed to allow a greater latitude of proof; the test of a good notice being that the matters therein contained can be specially pleaded; its privilege consists in an exemption from the forms and formalities of a plea, but it must contain all the substance and certainty of one as to the facts or. matter's proposed tobe given in evidence. Now possession is a good title for the plaintiff to hold against all the world but the right owner; and if it be conceded that John Van Wagoner is that right owner, still no stranger can set up the title for him without his command; therefore, command is the proper word, and the defendant must strike out “ authority, license or permission,” or loose his notice; for if they mean the same thing as command they are superfluous and may be very embarrassing to the court and jury, and if they mean a different thing they are clearly illegal. I do not mean to say what evidence will or will not amount to a command; it must necessarily be left to the court and jury to determine on the sufficiency of it when it is produced at the trial.
The fourth notice alleges a custom in Aquackanunck for the inhabitants of the town to take their cattle over the locus in quo to water; the sixth alleges a custom for all persons taking lumber to Aquackanunck for market, to store it on the locus in quo till it shall be carried on board of vessels for transportation to market; and the seventh alleges a prescription in the que estate for a right of way to water over the locus in quo.
I will not consume much time in remarking that a right to store lumber, is a profit in another’s soil that must be prescribed for in a que estate and cannot bo claimed by custom; (6 Co, 59. b. 4 Ter. Rep. 718,) because I place my [160] objection to these three notices on another ground, which is that “so much of the common law” as respects rights accruing by custom and prescription has not been “ heretofore practised” in New Jersey, {Cons, of N. J., sec. 22,) and these doctrines could not now be introduced without doubtful if not dangerous consequences. The country could not have progressed till this time without a single instance of a right being established on either of these grounds in our courts of justice, if these doctrines had been received here with the common. law. “ ‘ Time of memory ’ hath been long ago ascertained by law to commence from the beginning of the reign of Eichard the first, and any custom may be destroyed by evidence of its' non-existence in any part of the long period from that time to the present,” (2 Bl. Com. 31.) This is sufficient to destroy all common law customs in New Jersey, for the country was not discovered by civilized inhabitants, and civil rights could not consequently have been in use, till more than three hundred years alter the beginning of the reign of Eichard the first. In most towns-standing on navigable water are many uninclosed water lots not applicable to agriculture nor wanted for commercial purposes as yet, over which the inhabitants have been never restrained from passing or driving their cattle to water;, and if custom (which is a local law founded on universal usuage, and can no more be released than ,any other law) is to prevail according to the common law notion of it, these-lots must lie open forever to the surprise of unsuspecting; owners, and to the curtailing commerce, in its more advanced state, of the accomodation of docks and wharves, when per haps a tenth part of the lots now open would be all sufficient as watering places; a principle of such extensive operation ought not to be strained beyond the limits assigned to it in-law. If public convenience requires high ways to church, school, mill, market or water, they are obtainable in a much more direct and rational manner under the statute than by way of immemorial usage and custom. I must not be under[161] stood to mean that the uninterrupted enjoyment of an easement in another person’s soil for twenty or thirty years, or perhaps a less period of time, will not bo evidence for a jury to presume a grant or dedication of such easement, after duly considering such explanations, reasons and opposing circumstances as the case may afford. Usage beyond time of legal memory and usage within memory depend on principles and evidence totally distinct from each other. If the defendant relies on usage for a (definite period of time he ought to amend his notice so as to correspond with the evidence he means to offer; it can answer no purpose of justice or candor to give notice of one thing and prove another. I am of opinion therefore as to these three notices that the rights therein set up cannot be maintained in the form nor on the principle therein stated, and that they ought to be stricken out.
In a second action between the parties wherein the defendant sets up in his second notice a custom by immemorial usage, and in the fifth a 'prescription in the que estate I need only observe that they ought to he stricken out for the reasons before mentioned.