77 Pa. 432 | Pa. | 1875
delivered the opinion of the court,
Had the declaration in this case been in the general form, in trespass quare clausum fregit, and the defendants, without pleading the general issue, had justified by the plea of an easement, there would he great plausibility in the contention that proof of any easement would sustain the plea, and that to avoid this result the plaintiff must new assign. It is unnecessary to consider whether the special character of the declaration rendered this unnecessary. If a plaintiff sets out his claim by metes and bounds, the defendant may plead liberum tenementum, but no new assignment is necessary, for obvious reasons. But here there was the plea of not guilty, and the cause was before the jury on all the issues. Under the general issue the defendants below could have given evidence of their easement without reference to the special plea. Even the defence set up by a plea of liberum tenementum can be given in evidence under the general issue: Fisher v. Morris, 5 Whart. 358. Surely, then, the plaintiff could answer that defence by showing that the trespass complained of was not justified by the easement proved; that while the easement of which evidence had been given was of a drain of one foot, the defendants had made a drain three times that size. Where there are several issues before the jury, whatever would be competent evidence under either, if it stood alone, is admissible. In Darlington v. Painter, 7 Barr 473, the general issue was hot pleaded, yet it was held in that case that a plea of a general right to a watercourse is not sustained by evidence of a particular right. It would follow that the defendants below failed in their defence under the plea of “ certain easements of drainage,” if it appeared on their trial that all they could lay claim to was a drain at a particular place and of a limited capacity. The evidence admitted, therefore, to show that the ancient drains had been very much enlarged, was entirely competent under the authority of that case even under the special plea.
Judgment affirmed.