
    WASHINGTON COUNTY.
    James W. D. Rathbun vs. New York, New Haven & Hartford R. R. Co.
    Exceptions, &c.,
    No. 207.
    EVIDENCE ; PRESUMPTION OF GRANT OF RIGHT OF WAY ; PLEADING AT LAAY ; REMEDY FOR OBSTRUCTING RIGHT OF AVAY.
    
      Filed May 4, 1896.
    
    
      Baker & Potter, for plaintiff.
    
      Dixon, for defendant.
   Per Curiam.

A right of way being an incorporeal hereditament the proper remedy for obstructing or interrupting it is case, and not trespass. The objection that the plaintiff has mistaken his action is not waived by submitting the case to the jury. Advantage may be taken of the error at any stage of the trial. 1 Chit. PL ** 143, 193. We are of the opinion, therefore, that the Common Pleas Division properly directed a nonsuit. The plaintiff’s petition for a new trial must be denied, and the case remitted to the Common Pleas Division Avith direction to enter judgment for the defendant with costs.

We are of the opinion that the Common Pleas Division erred in holding that the evidence submitted by the plaintiff tended to prove nothing more than a revocable license. We think that the evidence would have warranted the jury in presuming a grant of a way, without any finding that the plaintiff was entitled to the way by .prescription. Washburn on Easéments, (Edition of 1863,) 19, 20.  