
    Seth Miller et al. versus Jedediah Miller.
    In a writ of right, a plea averring a seisin of the land to be in the tenant for the purpose of enjoying an easement of a right of way, was held bad.
    This was a writ of right. The tenant “ comes and defends the right and seisin of the demandants of the demanded premises &c. as of fee and right, and says he hath nothing &c., and disclaims to have any thing, in the demanded premises &c., except only the right and privilege to himself, his heirs and assigns, of a lane upon the demanded premises &c., the full length and breadth of the demanded premises, to a ditch at the northerly end thereof, so as to include the water of a spring at the end of said ditch sufficient to water creatures n a dry time, granted to said Jedediah by one John Miller by deed, &c., by virtue of which said giant the said Jedediah then and there became seised, and has ever since continued to be seised of the demanded premises for the purposes for which the same were granted as aforesaid, and this the said Jedediah is ready to verify; wherefore he prays that recognition be made whether the said Jedediah hath greater and better right to hold the demanded premises for the pirnposes &c., and in manner aforesaid &c., or whether the demandants have title, &c.”
    
      Oct. 25th.
    
    
      Oct. 27th.
    The pleadings terminated in a general demurrer, and the question was upon the sufficiency of the plea.
    
      W. Baylies and Eddy, for the tenant,
    cited Alden v. Murdock, 13 Mass. R. 259; Prescott v. Hutchinson, ibid. 439; Otis v. Warren, 14 Mass. R. 239; Charnley v. Winstanley, 5 East, 266; 1 Chit. Pl. 445; Le Bret v. Papillon, 4 East, 509; Crocker v. Whitney, 10 Mass. R. 319; Spear v. Bicknell, 5 Mass. R. 125.
    
      Wood, contra,
    
    cited Stearns on Real Actions, 207, 208.
   Per Curiam.

The plea in bar is bad, in averring a seisin of land for the purpose of enjoying an easement. The effect of this, if allowed, would be to shut out the plaintiffs from any use of the land over which the way runs, although entirely consistent with the tenant’s enjoyment of the right of way. This cannot be, for the seisin of the land remains in the owner, notwithstanding the right of way in another.

The tenant might have so pleaded as to save his way and the costs of the suit, by disclaiming all title to and possession of the land, except his incorporeal right of using it for a way. 
      
       If in a writ of entry the tenant pleads the general issue, whereby he claims the fee, but fails to support his plea, he is not thereby estopped from setting up a claim to an easement in the land. Tyler v. Hammond, 11 Pick, 220.
     