People ex rel. Fryer v. New-York Common Pleas

18 Wend. 304

• Court: New York Supreme Court
• Decided: June 15, 1836
• Status: Published

Opinion

By the Court,

Bronson, J.

The present statute, although it differs in phraseology, was only intended to adopt the exposition which had been given to the former law. (2 R. S. 613, § 3, sub. 2. Revisers’ notes. Chandler v. Duane, 10 Wendell, 565.) Notice of justification with the general issue was equivalent to a special plea, for all the purposes contemplated by this statute. (6 Wendell, 539.) But in this case, if the notice was good for any purpose, it did not call in question the title, nor a right of way, nor any easement in the land. It amounted to nothing more than a license to enter for a particular purpose, which the party might revoke at pleasure. A permission to enter and repair a drain, is not an easement in land, nor is a license to pass through an alley equivalent to a right of way. A permission or license to enter for either of the specified purposes, conferred no right or interest in the land. It was a mere authority to enter without being treated as a trespasser. If the defendant had not expressly disclaimed all title and interest in the land, setting up a license was equivalent to an admission that he had none. (Ex parte Coburn, 1 Cowen, 568.) What the pleader meant by a license from necessity, I am unable to say. There may be a way of necessity over another’s land ; but that is not the defence relied upon in this notice. (1 Saund. 323, note 6.) Motion denied.