The plea purports to be a eohfession and avoidance of the declaration. It, in substance, admits the acts charged as trespasses, and sets up, by way of avoidance, that they were proper to be done by the Concord Railroad and its servants in the running and operation of the Concord & Portsmouth Railroad.

The declaration contains two counts, charging, first, a breaking of the plaintiff’s close, &c., and second, a taking and conversion of the plaintiff’s property, namely, two tons of hay; by which is undoubtedly meant the hay which the defendants had cut within the fences of the railroad.

*621It is settled tbat the exclusive right of property in the trees and herbage upon land taken for the construction of a railroad under the laws of this State remains in the owner of the soil, unchanged by such appropriation, subject to the right of the corporation to construct and operate its railroad over and "through it as authorized by law. Blake v. Rich, 34 N. H. 282. The plea, therefore, amounts to no more than this, — that the defendants took and converted two tons of the plaintiff’s hay; but they are not liable in this action, because they were acting as servants and by the direction of the Concord Railroad, and such an act was proper to be done by the Concord Railroad in the running and operation of the Concord & Portsmouth Railroad.

The court cannot say, as matter of law, that the right to take and convert this property results to.the railroad from their right to use the land over and through which their road passes for the purposes of their incorporation. What the railroad might legally do in clearing their land of the grass and herbage along the sides of their track is not before us on this demurrer, because the plea admits that they committed the several supposed trespasses in the declaration mentioned, and among them is the charge that they took and converted the hay. We are of opinion that the plea does not show a legal answer to the second count in the writ. Whether it is sufficient to avoid the legal effect of the facts charged in the first count we have not considered. It manifestly affords the plaintiff but little light, as to the right upon which the defendants intend to rely at the trial, to say that they entered and cut the grass because it was proper for them to do so in running and operating the railroad. Some more specific and detailed' statement of the facts out of which the right claimed arises, we think, ought to be given.

Demurrer sustained.