Melvin v. Whiting

delivered the opinion of the Court. This is an action of. trespass on the case for disturbance of a fishery in Merrimac river. After a verdict for the plaintiff, the counsel for the defendant moved for a new trial, on several grounds, and the question is, whether upon the facts reported the plaintiff is entitled to judgment.

The plaintiff claimed title to a several fishery on the soil of the defendant, on the presumption of a non-existing grant, and relied on the proof of an adverse, uninterrupted and exclusive use and enjoyment of the right and privilege claimed, for more than twenty years before the commencement of this action; and the jury were instructed, that upon satisfactory proof of such use and enjoyment, they were authorized to presume a grant.' They were also instructed, that to raise such a presumption, it must appear that such exclusive right had been used and enjoyed against those who were able in law to assert and enforce their rights, and to resist such adverse claim if not well-founded ; and therefore, that if the persons against whom such right is claimed, were under the disability of infancy, the time during which such disability continued was to be deducted in the computation of the twenty years. These, instructions are manifestly correct, and it is not denied that the evidence was such as would warrant the jury to find a verdict in pursuance thereof for the plaintiff, provided the use and enjoyment' by the plaintiff, and that by those under whom he claims, may be coupled, so as to make up the twenty years, notwithstanding the intervention of the rights of Fletcher’s heirs and their disability ; and we have no doubt that they may. If it were otherwise, it would be difficult to maintain the presumption of a grant by any lapse of time and continuance of possession, if death should intervene in every period of twenty years, so that a man and his ancestors might have the uninterrupted use and enjoyment of a privilege or easement for a century, without acquiring any right ; which cannot be maintained. It is admitted that no authority has been found to sanction such a doctrine, and very clearly it cannot be supported on principle.

In regard to the pleadings in a former action between the parties, we are of opinion that they were rightly rejected *189if rejected they were; which, however, is left doubtful by the report of the case. In the former action the present plaintiff was defendant and pleaded that the fishery in question was a free fishery appurtenant to his close, and that the same was also a public fishery, in which he, and all those under whom he claims, had a right to fish; but he did not plead that he had a several and exclusive fishery, as he now claims it in the present action. And it has been argued that these pleas are evidence of an admission by the plaintiff, that he had no such several and exclusive right. But it is obvious, that it was not material for the defendant in that action to set up a several and exclusive fishery, and his omitting to plead it as such is no admission that he had no such exclusive right. It is said that a free fishery and a several exclusive fishery are inconsistent, and to be sure in some sense they are so; but a party may avail himself of different titles, in some measure inconsistent, without prejudice, even in the same action ; « fortiori may he vary the statement of his title in different actions, wherein different questions arise to render such variance material. In trespass, the defendant, under leave to plead double,, may plead the general issue and a justification ; and in debt on a bond, the defendant may plead non est factum, and that the bond is void, having been procured by duress, or that it was delivered as an escrow ; and the language in one plea cannot be used to disprove another plea in such cases, as Chief Justice Mansfield held in the case of Harrington v. Macmorris, 5 Taunt. 233; and this is admitted by Jackson J. in Alderman v. French, 1 Pick. 1, in which the rule of evidence in this respect has been supposed to have been pushed to its utmost extent. “ The question,” he says, “ is confined to the case where the defendant directly and explicitly declares and alleges a certain fact, and afterwards in the same cause calls on the plaintiff to prove that fact. It applies not to pleas and averments, which are to a common intent inconsistent, but to such as are directly and in words contradictory to each other.” We think, therefore, it is manifest, that the pleas of the plaintiff in the former action ought not to have been received to contradict his claim in *190this case ; especially as it was not necessary for the plaintiff in the present action to set out his title fully in the former case.' In trespass the defendant may plead that the soil and freehold in the locus in quo is in him, or that he has lawful possession ; but such a plea will not preclude him from averring in pleading, or showing in evidence in another action, that he at the same time was actually seised in fee. And such a variance is in no respect to be construed to his prejudice.

referred to St. 1795, c. 41 (Mass. Laws, edit. 1822, p. 481) ; 2 New York Revised Laws, 642, 643.

cited Howland v. Lenox, 4 Johns. R. 311 ; Newman v. ¿Bias Ins. Co., Phillips’s Dig. 113.

The remaining question is whether the evidence as to the initials A. F. ought to have been admitted, and we are of opinion, for the reasons given by the Chief Justice, in the report of the case, that it ought not. The evidence is altogether too uncertain to warrant a jury in drawing any inference from it.

Judgment according to verdict.

A question was made as to the amount of costs to be 1 taxe^ f°r the travel of two witnesses who came from other States, on the request of the plaintiff, the cleric having taxed the travel for the whole distance between their respective places of residence and the place of the trial.

afterwards drew up the opinion of the Court. Several objections have been taken to the taxation of costs for the plaintiff; but on the hearing, all of them have been withdrawn or disposed of, except that made to the allowance of 500 miles’ travel to one witness, and 300 to another, they having come from the States of Maine and New Hampshire respectively, on the request of the plaintiff, to testify in this cause. There seems to be no reported decision or settled practice on this point; and the construction of the statute allowing costs in such case, is by no means free from doubt. On consideration of the statute, however, and the practice under it, so far as we can ascertain it, a majority of the Court are of opinion, that travel for the attendance of a witness from another State, ought to be taxed only from the *191line of the State, in the usual and ordinary route, from the witness’s place of residence to the place of holding the Court; and the taxation of costs for the plaintiff in this case is to be amended accordingly. In all other respects the taxation of the clerk is confirmed.