Alleman v. Dey
49 Barb. 641
N.Y. Sup. Ct.
1867
Check Treatment
By the Court, E. Darwin Smith, J.

All the title which the .plaintiff had in the farm in his possession at the time of *644the alleged trespass complained of in this action, he derived from, and acquired under, the deed from James E. Dey and wife, dated April 15,1856. In that deed, the cemetery situate on said farm is expressly excepted to the extent of one half acre of land, with the right of ingress and egress to and from the same. The grantor in the deed clearly reserved title in himself, and his cotrustee, in this one half acre of land used for a cemetery, with the right of way to and from it. On the trial of this action, the defendant asserted this right under the exception, or reservation, to the said trustees of this cemetery, with the right of ingress and egress to and from it, to go to said cemetery across the plaintiff’s land, and hury in said cemetery the deceased Tennis Dey, the descendant of General Richard Dey, of Preckness, Hew Jersey, under the license for that purpose given to the said James R. Dey and J. C. Dey, trustees, &c. The verdict and judgment in favor of the defendant affirms this right, and establishes, if it remains unreversed, the right of way in question as a valid, legal and permanent right. It seems to me the verdict was right on this point, and that the defendant was entitled to carry the said Teunis Dey into said cemetery, and to cross the plaintiff’s land for that purpose ; hut I do not see, nevertheless, how this judgment can be sustained. The action was trespass quare clausum fregit, in a justice’s court. The defendant did not plead title. The plaintiff gave no evidence of title, hut simply proved his possession and the defendant’s entry upon his close, and the damages sustained, and rested. The defendant then gave the deeds in evidence, which raised the question of title to the cemetery under the exception in the plaintiff’s deed, and the right of ingress and egress thereto and thereupon. In offering the deed, the defendant’s counsel stated, at the time, that he did so for the purpose of showing the extent, limitation and restrictions of the plaintiff’s possession, and not with a view to show title. For this purpose, they were clearly unavailable. The plaintiff’s possession of his farm was clear, unquestioned and absolute, unless a right *645of way existed, under the reservation, or exception, in said deed for the purpose of going to and coming from said burying ground for the purposes in said deed expressed. Such right of way was an easement—an interest in land—and affected the title to land, (6 Hill, 343,) and such title could not be tried in a justice’s court. (Code, § 54. Striker v. Mott, 6 Wend. 466. Powell v. Russ, 8 Barb. 567. Hall v. Hodskins, 38 How. Pr. R. 15.) The defendant clearly had no defense in the action, except in the assertion and establishment of this right of way over the plaintiff’s land to this cemetery. As this right could not be tried by the justice, his judgment is erroneous, unless it can be sustained upon some other ground. Excluding these deeds, there is not a particle of defense proved in the action, and it presents, in this aspect of it, a naked case of trespass, for which the plaintiff was clearly entitled to recover some damages. The judgment of the county court must, therefore, be reversed,

[Monroe General Term, September 2, 1867.

Judgment reversed.

Welles, E. D. Smith and Johnson, Justices.]