6

he is the owner and is also in possession of the property, he may recover for injuries to both the land and to his possession. It is not necessary to describe the lands entered upon by metes and bounds; and since actual force is not necessary to constitute a trespass upon land, it need not be alleged that the injury was forcible.' A complaint in trespass for cutting down and carrying away the plaintiff's trees is good, without an averment that the land where the trees were growing belonged to the plaintiff. In a complaint against a railroad company for trespass in laying its tracks in a public street, between the centre thereof and the plaintiff's lots, it is sufficient for the plaintiff to allege his ownership of the lots, and the commission of the trespass thereon; the plaintiff's ownership in the street will be implied fron the averment of his ownership of the adjacent lots.10 And a complaint alleging that the plaintiff's intestate was the owner of certain premises subject to the easement of a highway in a portion thereof, and that the defendant wrongfully entered on the portion used as a highway, and committed acts of trespass by running daily therein steam engines and cars, to the injury of said premises and the plaintiff's business in the adjacent building, states a good cause of action for a trespass." In trespass to land, a superfluous reference in the complaint to the statute giving treble damages, does not prejudice the plaintiff's right of action.12 And the introduction in a complaint of an averment of a forcible entry upon the plaintiff's premises, in the same statement with an allegation of an unlawful carrying away of his property, does not prevent a recovery for the latter, although there be no evidence offered of such forcible entry.13 Trespass de bonis asportatis could always as a separate cause of action be joined with trespass quare clausum fregit,14 and are joinable under

the Code system of pleading.15 But a count in a complaint alleging a trespass quare clausum fregit, is inconsistent with one alleging that the defendant was a tenant for years of the close, and committed waste thereon.16 A complaint containing apt allegations of an unlawful and forcible breaking and entry upon land, and the taking down of a fence enclosing the same, belonging to the plaintiff, and that by reason thereof one of the plaintiff's cows strayed from the land and was killed, states merely a cause of action for a trespass to realty, and the allegations respecting the death of the cow do not constitute a separate cause of action, but go only to the question of damages. A complaint which fails to state sufficient facts to show wherein the refusal of the defendant to remove his house from the ground in controversy was wrongful or unlawful, or that the damages claimed were the direct result of a wrongful or unlawful dispossession, occupation, trespass, or detention, fails to state a cause of action, and is bad on demurrer.18

1 Mack v. Staab, N. Y. Com. Pl. Abb., An. Dig. (1884) 270; Cowenhoven v. City of Brooklyn, 38 Barb. 9. And see Wood v. Lafay ette, 63 N. Y. 181; Nostrand v. Durland, 21 Barb. 478; McMenamy v. Cohick, 1 Mo. App. 52); Fuhrer v. Langford, 11 Mo. App. 286; Uttendorffer v. Saegers, 50 Cal. 496. One who is neither the owner of nor in possession of land caunot maintain trespass or case for an injury to the land: Williams v. Shade, 13 Ill. App. 337.

2 Cowenhoven v. City of Brooklyn, 38 Barb. 9. And see Daley v. City of St. Paul, 7 Miun. 390. A complaint in trespass merely averring that the plaintiff was "entitled to the exclusive possession of the premises, is an assumption of law, and is bad: Garner v. McCullough, 48 Mo. 318; Smith v. Dean, 19 Mo. 63; Sheridan v. Jackson, 72 N. Y. 170.

3 Fitzpatrick v. Gebhart, 7 Kan. 35. And see Gilmore v. Roberts, 18 S. C. 551.

4 Fitzpatrick v. Gebhart, 7 Kan. 35.

5 Fitzpatrick v. Gebhart, 7 Kan. 35. And see Vance v. Beatty, 4 Rich. 104; Palmer v. Tuttle, 39 N. H. 486.

6 Whitaker v. Forbes, 68 N. C. 228. And see Shipler v. Isenhower, 27 Ind. 36.

7 Febes v. Tiernan, 1 Mont. 179; Darst v. Rush, 14 Cal. 81.

8 Gronour v. Daniels, 7 Blackf, 108. And see Atlantic etc. R. R. Co. v. Freeman, 61 Mo. 80.

9 Spencer v. St. Paul etc. R. R. Co. 21 Minn. 362. And see Hussner v. Railroad Co. 96 N. Y. 18.

10 Spencer v. St. Paul etc. R. R. Co. 21 Minn. 362. And see Hussner v. Railroad Co. 96 N. Y. 18.

11 Hussner v. Brooklyn City R. R. Co. 18 N. Y. Week. Dig. 217; S. C. aff'd, 19 N. Y. Week. Dig. 111; 96 N. Y. 18. And see Mott v. Mott, 68 N. Y. 253.

12 Starkweather v. Quigley, 7 Hun, 26.

13 Colton v. Jones, 7 Robt. 164. And see White v. Bircher, 6 Mo. App. 595.

14 See Floyd v. Floyd, 4 Rich. 23; Heimer v. Wilcox, 1 Ind. 29; McClees v. Sikes, 1 Jones (N. C.) 310; Lovett v. Pell, 22 Wend, 369. 15 Colton v. Jones, 7 Robt. 164. Compare Frost v. Duncan, 19 Barb. 560.

16 Evangelical Lutheran Church v. Finger, 11 N. Y. Week. Dig. 460. 17 Sayles v. Bemis, 57 Wis. 315.

18 Brandenburg v. Miles, 7 Colo. 537.

? 208. Trespass-Answer.-It is held that a defendant cannot, under a general denial in his answer, excuse a trespass by proving the right of possession or title in some third person, but that such defense must be specially pleaded.' But an allegation in the answer that the property taken was owned by a third person, and that all the alleged trespass was made under the direction and as the agents of said person, is sufficient to authorize proof of such ownership and agency.2 So it was held in an action trespass quare clausum fregit, that the defendant may prove, under a general denial, that a tenant of the plaintiff was in the actual possession.3 In such action, where the complaint avers matters of aggravation after the entry, an answer justifying the aggravating matter, but admitting the plaintiff's title and possession, does not state facts sufficient to constitute a defense. Where the complaint alleged the plaintiff's ownership of the locus in quo, and the defendant in his answer justified the entry upon the ground that he had an open right of way over the premises, this was held to be an admission of the plaintiff's title and possession, and his unsuccessful attempt to prove either

title or possession did not deprive him of the benefit of the admission.5 It is not a sufficient traverse of the allegation of possession by the plaintiff, for the defendant to aver in his answer, that to the best of his information and belief he did not commit the grievance upon any land in the lawful possession of the plaintiff. Where the complaint alleges the plaintiff's ownership and possession of the land, and the answer does not deny the possession, but sets up title in the defendant, the latter has the affirmative to defeat the former's title. A right of way, either public or private, is an interest in land, and one who relies upon such a right as a defense to an action of trespass commenced in a Justice's Court must plead the same specially, and tender the bond required by statute. And in an action for trespass to land, if the defendant relies upon a license, it must be specially pleaded, and cannot be given in evidence under the general issue; 10 but if the facts constituting the license are averred, it is enough. An answer justifying merely because the defendant has an easement on the land, without setting forth how the enjoyment of the easement was impeded, contains no defense.12 An answer justifying a trespass on the ground of official duty should aver that the defendant is an officer, and what his official duty is, and in case there are other defendants, and the answer is intended to apply to them, it should state that they entered in aid of the officer.13 And it may be stated as a general rule, that matter in justification of a trespass must be specially pleaded.1

1 Patterson v. Clark, 20 Iowa, 429; Althause v. Rice, 4 Smith, E. D. 348; Squires v. Seward, 16 How. Pr. 478. And see Gerber v. Monie, 56 Barb. 652; O'Reilly v. Davies, 4 Sand. 722; Demick v. Chapman, 11 Johns. 132; Marsden v. Cornell, 62 N. Y. 222; Richardson v. City of Boston, 19 How. 263, Compare 73, ante.

2 Adams v. Robeson, 19 N. Y. Week. Dig. 468.

3 Uttendorffer v. Saegers, 50 Cal. 496.

4 Pico v. Colimas, 32 Cal. 578.

5 Potter v. Smith, 70 N. Y. 299.

6 McCormick v. Bailey, 10 Cal. 230.

7 Wheeler v. Spinola, 54 N. Y, 377.

8 State v. Huck, 29 Wis. 202; Ashbough v. Watter, 24 Wis. 466; Striker v. Mott, 6 Wend. 465.

9 Lowitz v. Leverentz, 57 Wis. 596. See Douglas v. Valentine, 7 Johns. 273,

10 Lockhart v. Geir, 54 Wis. 133; Beatty v. Swarthout, 32 Barb. 293. And see ¿ ante.

11 Lockhart v. Geir, 54 Wis. 133.

12 Pico v. Colimas, 32 Cal. 578.

13 Pico v. Colimas, 32 Cal. 578.

14 Demick v. Chapman, 11 Johns. 132; Knox v. Marshall, 19 Cal. 617; McComb v. Reed, 28 Cal. 281; McDonald v. Prescott, 2 Nev. 109.

209. Trusts. —A complaint which does not set forth a case of trust, nor seek relief on that account, does not present a case for equity jurisdiction on the ground of trust.1 If the complaint in an action seeks a recovery by virtue of the existence of a trust, it should be substantially charged with reasonable certainty.2 So in an action to have a trust declared, all the facts from which the trust is claimed to result should be set out.3 But a complaint is not defective for omitting to state the conclusion from the facts alleged. One seeking to enforce a resulting trust must show by appropriate averments that it belongs under some one of the classes mentioned in the statute.5 If it is sought to enforce the execution of a trust in the name of a mere volunteer, and for his benefit, a declaration of trust in his favor must be alleged. The court having authority to appoint a trustee of real estate in place of a deceased trustee, an allegation that he was duly appointed by an order of the court is sufficient. One count in a complaint, alleging that certain shares of stock owned by the plaintiff were purchased at judicial sale by the defendant, under a parol agreement that the defendant should hold the shares in trust, and reconvey them upon payment of a debt due from the plaintiff, may be properly joined