431. Justification of trespass under the powers and provisions of an Act of Parliament.-Where the plaintiff complained that the defendant had built a bridge which encroached upon and projected over the land of the plaintiff, it was held that the defendant might plead generally that the several acts, matters, and things of which the plaintiff complained were lawfully done by the defendant, in exercise and by virtue of the powers given to the defendant by an Act of Parliament, made, &c., and intituled, &c. (2) When the defendant justifies the demolition of a house under the powers and provisions of the Metropolis Local Management Act, or of a portion of a house projecting beyond the general line of the street under the Metropolis Social Management Amendment Act, (k) it must be shown that the person damnified had an opportunity of being heard before the board prior to the exercise of the power. (1)1

(i) Beaver v. Mayor, &c., of Manchester, 26 Law J., Q. B. 311. Watkins v. Gt. Northern Rail. Co., 16 Q. B. 961. As to the replication to this plea, see Brine v. Gt. West. Rail. Co., 31 Law J., Q. B. 101; and post, ch. 16.

(k) 18 & 19 Vict. c. 120, s. 76. Brut. ton v. St. George's, &c., L. R., 13 Eq. Cas. 339.

(7) Cooper v. Wandsworth Board, &c., 14 C. B., N. S. 180.

1 In all pleas justifying the doing of an act under legislative authority, the plea must disclose a compliance with all the provisions of the act conferring the power, and that the act charged is fairly within its scope. Stamford v. Worn, 27 Cal. 171; People v. Law, 34 Barb. (N. Y.) 294; Jolly v. Terre Haute Draw Br. Co., 6 McLean (U. S.) 237; Richardson v. Vt. Cent. R. R. Co., 25 Vt. 465; Wooster v. 42d St. R. R. Co., 50 N. Y. 203; Waterman v. Conn. & Pass. R. R. Co., 30 Vt. 610; Sabin v. Vt. Cent. R. R. Co., 25 Vt. 363. And if anything remains to be done which is a prerequisite to the exercise of the right, as the appraisal or payment of damages, the act affords no protection. Robinson v. N. Y. & Erie R. R. Co., 27 Barb. (N. Y.) 512; Fletcher v. R. R. Co., 25 Wend. (N. Y.) 462. No person or corporation can exercise the power to take private property for public purposes, only so far as the legislature plainly confers it. East St. Louis v. St. John, 47 Ill. 463.

The power of the legislature to authorize the taking of private property for public purposes is unquestionable. It is a power necessarily incident thereto, and one the withholding of which would retard the healthy progress of the states. Therefore the constitution has not withheld the right, but has wisely provided for its exercise, upon payment of just compensation. Kier v. Boyd, 60 Penn St. 33; Avery v. Fox, 1 Abb. (N. S.) 46; Anderson v. Tubevaille, 6 Cald. (Tenn.) 150; Henry v. Underwood, I Dana (Ky.) 232; Castor v. Tide Water Co., 15 N. J. 54; Varrick v. Smith, 5 Paige Ch. (N. Y.) 137; Perry v. Wilson, 7 Mass. 395; Charles River Br. v. Warren Bridge, 7 Pick. (Mass.) 344; Lance's Appeal, 55 Penn. St. 16; East Tenn. &c. R. R. Co. v. Low, 3 Head. (Tenn.) 63. But the purpose for which the land is taken must be public, for the state has no power to authorize the taking of private property for private purposes, even upon the payment of ten times its value. Osborn

432. Pleas justifying the breaking and entering a dwellinghouse without warrant (m) to make an arrest for felony, or to prevent the commission of murder, must show, in the first case, that a felony had been committed, and that there was reasonable ground for believing that the felon was in the house; (n) and, in the second case, that the life of some person inside the house was really in danger; that there were calls for assistance; that the door was fastened; and that it was necessary to break it open and enter the house, and render assistance for the preservation of life. (o)'

433. Of pleas of justification under a prescriptive title.When the defendant justifies, under a prescriptive right to enter and take a profit of the soil, he must set forth in his plea an enjoyment as of right, and without interruption for the full period of thirty years before the commencement of the action. (p) And when he claims, only an easement, he must set

(m) As to justification under warrant and in execution of legal process, see post, ch. 18.

(n) Smith v. Shirley, 3 C. B. 142.

(0) Handcock v. Baker, 2 B. & P. 260.

(p) Jones v. Price, 3 Sc. 376; 2 B. N. C. 52. Clayton v. Corby, 2 Q. B. 813. Holford v. Hankinson, 5 Q. B. 584. Cooper v. Hubbuck, 12 C. B., N. S. 456.

v. Har', 24 Wis. 84; Hall v. Boyd, 14 Ga. 1; Dunham v. Williams, 36 Barb. (N. Y.) 136; Concord R. R. Co. v. Greely, 17 N. H. 47; Dickey v. Tennison, 27 Mo. 373; Grim v. Wissemberg, 37 Penn. St. 433. And where a plea of justification under a public act is plead, the plea must not only disclose enough to show that the alleged trespass was warranted by the act, but that the trespass was necessarily committed in carrying out the provisions of the act. Fulton v. Monahan, 4 Ham. (Ohio) 426. And that all the requirements of the act have been complied with. Rushton v. Grimwood, 30 Ind. 364: Rubattom v. McClure, 4 Black (Ind.) 505. And it must also aver that the acts justified are the acts complained of. Wheeler v. Meshinggomisia, 30 Ind. 402.

In an action of trespass for searching a person's house without a warrant, evidence may be given in mitigation, of a reasonable suspicion that implements or evidences of crime were concealed there, and that the entry was made to search for them. Simpson v. McCaffrey, 13 Ohio, 508; Reed v. Bias, 8 W. & S. (Penn.) 189. And so for false imprisonment, evidence warranting a reasonable suspicion is admissible in mitigation. Russell v. Shuster, 8 W. & S. 308; Wasson v. Canfield, 6 Black. (Ind.) 407. And for pulling down a house, the existence of great public excitement and disorder, and the doing of the act to save the neighborhood from threatened violence, is proper matter in mitigation. Reed v. Bias, 8 W. & S. (Penn.) 189.

2 In this country a prescriptive right is regarded as acquired by an uninterrupted user in the manner required to acquire such rights, for the period fixed in the several states by statute, for acquiring the title to lands by adverse user. Tracy v. Atherton, 36 Vt. 503; Townsend v. Downer, 32 Id. 183; Carlisle v. Cooper, 19 N. J. 256; Coe v. Wolcottville Mfg. Co., 35 Conn. 175.

forth a similar enjoyment for the period of twenty years. The Prescription Act, 2 & 3 Wm. 4, c. 71, enacts (s. 5) that in all pleadings where, before the passing of the act, the party claiming might by law have alleged his right generally, without averring the existence of the right from time immemorial, such general allegation shall be deemed sufficient; and if the same shall be denied, all the matters mentioned and provided in the act, which are applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and that in all actions and pleadings wherein it would have been necessary, before the passing of the act, to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right, by the occupiers of the tenement, in respect whereof the same is claimed, for such of the periods named in the act as may be applicable to the case; and if the other party intends to rely on any proviso, excep tion, incapacity, disability, contract, agreement, or any matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the claimant. A person who pleads a right or privilege in gross, not annexed or appurtenant to an estate in land, must show something more than that he is in possession as occupier. He must show that he is either heir or assignee of the person to whom the right is supposed to have been granted. (9)

The nature of the right should be correctly set forth on the face of the plea; and if the exercise of it is limited to a particular purpose, if it is a right, for example, to enter upon land for the purpose of digging stones and sand for the necessary repair of a dwelling-house, it should be so stated, and that the dwelling-house was out of repair. () When the defendant justifies under a plea of a right of common, he must by his plea set forth the nature of the right, and show whether he claims by grant or by prescription. If the right be subject to restriction or qualification as to the number of the cattle, or the time of enjoyment, it must be so stated. (s) If the right claimed be a right of common by prescription for all common

(q) Bailey v. Stevens, 12 C. B., N. S. 91; 31 Law J., C. P. 226.

(r) Peppin v. Shakespeare, 6 T. R. (s) I Wms. Saund. 23, n. 4, 346b.

748.

able cattle, levant and couchant upon a particular farm, the defendant should set forth by his plea that, at the time of the alleged trespass, he was possessed of a messuage, farm, or land, the occupiers whereof, for thirty years before the commencement of the action, enjoyed, as of right and without interruption, common of pasture over the land of the plaintiff for all their commonable cattle, levant and couchant upon the messuage, farm or land of the defendant at all times, or at all usual or customary times, of the year, as the case may be, and that the alleged trespass was a user by the defendant of the said right of common. (t)1

434. Pleas of justification in the exercise of a right of way. -When the defendant justifies under a plea of a right of way, he should show the nature of the right, and whether it is claimed by grant or by prescription, or as a way by necessity, (u), setting forth in the last case the circumstances whereby the land over which the way it claimed became chargeable with the servitude. (r) When the plea sets forth a title by prescription, it usually states that the defendant, at the time of the alleged trespass, was possessed of a messuage or land, the occupiers whereof, for twenty years before the suit, enjoyed, as of right and without interruption, a way on foot, and with horses, and carriages, and cattle, as the case may be, backwards and forwards from a certain public highway over the land of the plaintiff to the land of the defendant, at all times of the year, for the more convenient occupation of the messuage and land of the defendant, and that the alleged trespass was a user by the defendant of the said way. () The plea need not name or describe by metes and bounds the lands and closes in respect of which the right is claimed. A general description is sufficient; and if the plaintiff wants detailed information, he must apply for particulars. (z) The nature of the right should be correctly stated; and if the enjoyment of it is limited to particular times or periods, or to particular purposes, it should

(f) 15 & 16 Vict. c. 76, Sched. pl. 47. (u) Howton v. Frearson, 8 T. R. 50. Buckby v. Coles, 5 Taunt. 311.

(x) Bullard v. Harrison, 4 M. & S. 392.

Proctor v. Hodgson, 10 Exch. 824

(y) 15 & 16 Vict. c. 76, Sched. 46.. Jones v. Price, 3 B. N. C. 52; 3 Sc. 376. (2) Holt v. Daw, 16 Q. B. 995.

1 And the proof must be co-extensive with the plea. Berry v. Vreeland, 1 N. J. 183

be so stated in the plea. (a) There is one difference between pleading a public and a private way. In the former case, it is not necessary to set out the termini; in the latter, both must be set out with certainty. It is not necessary, however, to set out the intervening closes over which the way passes. (b)

To an action of trespass for deviating from a highway and trampling down the plaintiff's inclosure, a plea showing that the plaintiff himself stopped on the highway, so that the defendaut could not pass, wherefore the defendant went over the plaintiff's close, doing as little damage as he could, constitutes an answer to the action. (c)1

435. Replications traversing the prescriptive right set up by the defendants' pleas.-The fact of the defendant's having the right claimed by his plea may be put in issue by a replication traversing the allegation of the right as set forth in the plea. If the right is claimed by grant, and the answer is that the grant has ceased to operate, the replication must show in what way the grant has ceased to operate. (d) Though a prescription pleaded be larger than is necessary for the defendant's justification, the plaintiff must nevertheless traverse the whole of it. Since the Prescription Act, a plea setting up a right to a flow of water through a watercourse, and a right to enter upon the adjoining land for the purpose of cleansing and scouring the watercourse, is held to be a plea of the enjoyment of one entire prescriptive right, and is to be treated as one entire thing, and not as setting up two separate prescriptions. If a man pleads a prescriptive right to turn on cows, also a right to turn on horses, and also a right to turn on sheep, the plea sets up one entire right, and the plaintiff should traverse the whole. (e)

436. Traverse of the enjoyment as of right and without interruption. When the enjoyment as of right and without interruption is traversed by the plaintiff's replication, the defendant must show an uninterrupted rightful enjoyment, and his claim may be answered by proof of a license, written or parol, for a limited period, falling short of the period relied on. Any

(a) Higham v. Rabett, 5 B. N. C. 624. (b) Simpson v. Lethwaite, 3 B. & Ad. 233.

(c) Absor v. French, 2 Show. 28.
(d) Parry v. Thomas, 5 Exch. 41.
(e) Peter v. Daniel, 5 C. B. 568.

1 Leonard v. Leonard, 2 Allen (Mass.) 543 ; Kent v. Judkins, 53 Me. 163; Farnum v. Platt, 8 Pick. (Mass.) 334; Holmes v. Seely, 19 Wend. (N. Y.) 507.