
    RANDOLPH v. MONTFORT.
    On Certiorari to Common Pleas, on appeal.
    A way is an hereditament, and a claijn to it, is not within the jurisdiction of a Justice of the peace. If pleaded, it must be considered as a plea of title, and a bond should be given as is required on plea of title, otherwise it should be rejected.
    STATE OF THE CASE.
    Montfort sued Randolph, before a Justice of the peace, for a trespass on lands. From the judgment of the Justice an appeal was taken. And on the trial of the appeal, Randolph attempted a justification^ by a right of way, over the loous m quo. He proved, and offered to prove, that Montfort bought his farm, including the place in question, of a person under whom Randolph also claimed a piece of land, lately a part of the same farm; which though accessible by another way, had usually been approached by the route, in question, ever since the year 1829. Montfort obstructed this way, which was then laid out by three freeholders, as directed by our statute, Rev. L. 621 see. 13. It was again obstructed by the plaintiff below, when the defendant broke down and removed the obstruction, and travelled over the way, which was the same act complained of as a trespass. The . evidence of this right, and the laying out of the by-way, was objected to, and rejected by the Court of Common Pleas; which is the supposed error now complained of.
    
      Wm. Thompson, for plaintiff in Certiorari.
    
   The opinion of the Court, was delivered by

Ryerson J.

I perceive no error in the decision of the Court. The justice, and of course the Common Pleas, on appeal, have not jurisdiction of any cause, wherein the title to any lands, tenements, hereditaments, or other real estate, shall in any wise, come in question.” Rev. L. 629, seo. 1. A way is a hereditament. And if the defendant meant to insist on any right or title thereto, for justification of what is, prima fade, a trespass, he should, (according to the further direction of the statute, and the settled course of adjudications in this Court,) have pleaded his title, or right of way, in bar, and filed his bond with surety. This, it is well Known, would, at once, have ousted the Court of jurisdiction. The plaintiff would then have had recourse to another tribunal, prepared for the trial of this claim of right. By omitting to do this, the defendant below, the plaintiff in this Court, has lost all benefit from this ground of defence.

My only doubt, on the argument of this cause, arose from a question presented to my mind, whether wo could consider this a conflict about possession, and the evidence admissible on that ground. Reflection has removed that doubt. A way, like all incorporeal hereditaments, lies only in grant, and not in livery. It is a right, the enjoyment of which, requires no exclusive possession of the locus in quo. We allow a justice to try the question of possession merely, of corporeal hereditaments; but beyond this, we have not gone. For this there is a good reason, as possession can be proved by parol; is a matter of fact merely. In this respect there is a manifest distinction, between corporeal, and incorporeal hereditaments. For one is the object of our senses; the other in legal contemplation is not. I am therefore of opinion, the judgment of the Common Pleas must be affirmed. But it must not be inferred, from what I have said, that the evidence in question would have established the right claimed. On that point, I intend no intimation.

Hornbloweb, C. J. and Fokd, J. concurred.

Judgment Affirmed.

Cited in Campfield v. Johnson, 1 Zab. 86; Osborn v. Butcher, 2 Dutch. 310 ; Chambers v. Wambough, 4 Dutch. 531; Yawger v. Manning, 1 Vr. 182; Hawk v. Segraves, 5 Vr. 356.  