
    Robert Fulton v. William Monahan.
    Where defendant justifies breaking plaintiff’s close and carrying away stone, under the act of Congress for constructing the National road, the plea must aver and set forth the facts that constitute the necessity for such an invasion of private right, or it is bad.
    This was an. action of trespass, guare clausum firegit, and was reserved from the county of Muskingum.
    The defendant justified, under the act of Congress, passed May 15, 1820, and March 3, 1825, establishing a National road through the State ot Ohio, and, in his plea of justification, alleged, that the National road had been laid out, near the close in which, etc.; and that, in the construction of said road, it was necessary to make use of certain limestone, within the close in which, etc.; and that the defendant, as the servant, and under the direction and authority of the government of the United States, broke and entered said close, and took, and carried away said limestone, and used the same, in the construction of said road, and for no other purpose.
    To this plea, the defendant demurred generally.
    Adams and Stillwell,
    in support of the demurrer.
    Culbertson, contra.
   By the Court :

The plea does not set forth, with sufficient certainty, the authority under which the defendant professes to have acted. The government necessarily acts by its officers ; and whenever an individual undertakes to justify a trespass, under the authority of government, that authority must bo traced to some officer of the government, known and recognized by law as such.

*The defendant, however, in this ease seems to have rested his defense principally upon the grounds that the National road had boon located near the plaintiff’s close, and that stone were necessary in the construction of that road. Admitting these grounds^ it by no means follows that it was necessary to use the plaintiff’s stone. If he chose to rest his defense upon the necessity of using the plaintiff’s stone, he ought to have set forth the facts, that the court might judge of the necessity, A man may justify going over another’s ground, by reason that the common highway is founderous, or out of repair; but, in his plea of justification, it is not enough to say, that it was necessary for him to go upon the adjacent land, but he must allege specially, that the highway was out of repair, or founderous. Doug. 747; 1 Saund. 298; 1. Story’s PL 607.

Demurrer sustained.  