
    The Seneca Road Company vs. The Auburn and Rochester Rail-Road Company.
    An incorporated company, by constructing a turnpike, on the line of a road belong ing to the state, under a charter conferring the usual privileges of taking toll &c., thereby acquire a property in the turnpike.
    Accordingly, whore a rail-road corporation built their road across such turnpike without making or tendering any compensation therefor; held, that though their charter declared it lawful for them, when necessary, to lay- their road across any highway, they were liable to the turnpike company in damages.
    The maxim de minimis non curat lex is never applied to the positive and wrongful invasion of one’s property. Per Cowen, J.
    To warrant an action in such case, the degree of damage is wholly immaterial; it is enough that there be a plain violation of right and a possibility of damage. Per Cowen, J.
    In general, if the plaintiff declare in trespass where the action should be case, he will be nonsuited at the trial. Per Cowen, J.
    Otherwise, if the declaration contain enough to maintain case, though it commence by miscalling the action trespass. Semble; per Cowen, J.
    Facts showing that the plaintiff has mistaken his remedy by bringing trespass instead of case, cannot be pleaded in bar, but only in abatement.
    
    fire objection that a plea containing matter in abatement merely, commences and concludes in bar, may be taken advantage of by general demurrer; and on such a state of pleading the judgment is final.
    To a declaration in trespass guare clausum fregit containing two counts slightly varying from each other in regard to the description of the locus in quo, the defendant cannot plead that the premises &c. are the same, and thus answer both counts as one.
    
      Semble, that such a plea will be adjudged bad on general demurrer.
    One in the actual use of property tangible in its nature, may maintain trespass for a direct injury to it, though his right to use it be incorporeal merely—e. g. a franchise. Semble ; per Cowen, J.
    In general, however, where an incorporeal right has been interfered with, tire appropriate remedy is by action on the case. Per Cowen, J.
    Under a charter merely authorizing a company to construct a turnpike over land belonging to the state, they will acquire no more than a mere casement in the land. Semble ; per Cowen, J.
    Otherwise, if the land belong to individuals, and the company are empowered to purchase, have and hold it forever. Per Cowen, J.
    Demurrer to pleas. The first count of the declaration was in substance as follows: The Auburn and Rochester Rail-Road Company, defendants, were summoned to answer The President and Directors of the Seneca Road Company, plaintiffs, in a plea of trespass: And hereupon the said plaintiffs by «fee. complain of said defendants in a plea of trespass; for that the said plaintiffs, under and by virtue of an act See. passed April 1st, 1800, became, were and are a corporation; that under said act, to wit, on the 1st of January, 1802, they became and were seised and possessed of the lands and tenements hereinafter mentioned as part and parcel of their road in said act mentioned, the same being necessary to carry said act into effect; that from and after Sec. to the time Sec. the plaintiffs continued and were and still are seised and possessed &c.; that from that tune to and at the time &c. the plaintiffs continued to hold, occupy, claim and enjoy the said lands and premises as part and parcel of their said road from Utica to Canandaigua Sec.; and that while so continuing seised and possessed and so holding &c. the defendants, on the 1st day of November, 1841, and at divers times between See. with force and arms, by their servants See. entered upon the said lands and premises situated in the town of Aurelius, in the county of Cayuga, bounded west by the lands of said plaintiffs, south by lands of Samuel Tower, east by lands of said plaintiffs, and north by lands of Henry Hall, being in length 107 feet, and in breadth 40 feet, and did dig up the soil of said land and premises and did place divers obstructions on the same, and did place rails, timbers and other erections thereon and fix the same therein, and did carry the soil off and from said land and premises, to the great damage &c. The second count was substantially the same, slightly varying the abuttals of the locus in, quo.
    
    The defendants pleaded, first, the general issue; and second, as to the entry on the lands and premises in the 1st count mentioned &c. and as to the entering upon the said other lands and premises in the said 2d count mentioned &c., that the premises in both counts are and at the said several times when &c. were one and the same premises and not other or different premises ; that under and by virtue of an act &c. entitled “ an act to provide for the construction of a rail-road from Auburn to Rochester,” passed May 13th, 1836, the defendants are, and at the times when &c. were a body politic and corporate for the term of 50 years &c. for the purpose of constructing a rail-road between Auburn and Rochester &c.; that before and at (fee. the said premises were, and for a long time before had been used as a part of a public road or highway which had been opened, laid out and worked by and under the authority of “ an act for laying out and improving a road from old Fort Schuyler to the Genesee river,” passed March 22d, 1794; that under and by virtue of that act, the people &c. became and were the owners of the premises <fcc., the same being part of said road, and continued to be such owners (fee.; that by “ an act to establish a Turnpike Road Company for improving the state road from the house of John House, in the village of Utica &c., to the village of Cayuga (fee., and from thence to Canandaigua” &c., passed April 1st, 1800, the plaintiffs were created a body politic &c., and were authorized to enter upon the said road, and after-wards, to wit, on the first of January, 1802, did enter and take possession of the premises in the 1st and 2d counts mentioned, and, under color of said act, until the time (fee., did claim to be seised and possessed thereof: Whereas, the people of the state during all the said time &c., and until and at &c., were the owners &c. It was then averred that, in and by the act incorporating the defendants, whenever it should be necessary hi the construction of their said rail-road to intersect or cross any road or highway between Auburn and Rochester, they were authorized to construct their rail-road upon or across such road or highway ; that having before said túne <fcc. located their rail-road in the manner prescribed, upon and across the said road at the place where &c., and it being necessary for the construction of the said rail-road to cross upon the said road &c., the defendants, at the time <fcc., by their servants &c., entered &c., and at the several times &c. did erect, build and make their said rail-road upon and across <fcc., necessarily digging &c., doing no damage to said road <fcc., nor in any way obstructing the same or the use or enjoyment thereof &c., and immediately restoring the said road to its former state in a maimer not to impair its usefulness &c., as they lawfully might &c.; which are the several supposed trespasses &c.
    The third plea, after averring that the premises mentioned in both counts were the same, alleged that the plaintiffs, by the act of 1800, were made and became a body politic &c., for the purpose of making a good and sufficient road &c. from Utica to Canandaigua, observing the line of the then state road as nearly as the nature of the ground would allow; that the act authorized the plaintiffs to enter into any lands, when they should deem it necessary to deviate from the said state road &c., and contract with the owner or owners for the purchase of so much thereof as might be necessary &c.; that provision was made in said act for appraising the value of the lands so taken, in case of disagreement «fcc.; that upon payment &c. it was declared the plaintiffs should have and hold, to themselves and their assigns forever, the said lands &c. for the purpose mentioned in said act and for the use and construction of said road and not otherwise; that the plaintiffs obtained title to the premises by entry and appraisal &c.; that they made and completed their road in 1810, from which time the premises were a part of the said public road, and held by the plaintiffs for such public road &c.; and that the defendants were incorporated, and laid their rail-road upon and across the plaintiffs’ road &c. [as alleged in the second plea.]
    
      The fourth plea, after averring that the premises mentioned in both counts were the same, alleged that, from the 1st of April, 1800, the premises were and ever since have been a public road, called the state road, otherwise called the Genesee road, the absolute ownership having been then and ever since in the people. The plea then set forth the act incorporating the plaintiffs for the purpose of improving said road, with a right to taire toll, and averred that the plaintiffs entered and unproved accordingly, making and constructing a turnpike road, and continuing the same ever since along and upon the locus in quo, which formed a part of said state road, claiming to be seised in fee in their own right and to their own use, whereas the people were absolute owners; and that the defendants laid their rail-road across the said turnpike pursuant to their act of incorporation.
    
      Theffth plea was nul tiel corporation, upon which the plaintiffs took issue. They demurred specially to the second, third and fourth pleas, arid the defendants joined in demurrer.
    
      C. P. Kirkland, for the plaintiffs.
    
      A. Worden & M. T. Reynolds, for the defendants.
   By the Court, Cowen, J.

The act incorporating the plaintiffs (2 K. & R. 418) authorized them to construct a turnpike on the line of the state road, with the necessary deviations, and to take toll. By that statute and the action of the plaintiffs under it, they acquired the usual rights of our turnpike companies. One of these is at least a right to lay out a road through the lands of others, and to exact the statute contribution from those who travel upon it, as a compensation for labor and expense. The way became the company’s own, and no person, without their consent, could lawfully use, incumber or otherwise interfere with it in anyway, except as travellers on the terms fixed by the act of incorporation. The plaintiffs acquired a franchise. To say that the defendants might lay and occupy a rail-road across the turnpike, would be to recognize a principle by which, if followed out, the plaintiffs’ road may be rendered entirely useless, and their franchise destroyed. The act of the defendants has obstructed and impaired the free use of it, in some degree. That is not denied. If they have the right to do this, others have the same right; and the measure in which the plaintiffs’ property is to be enjoyed becomes a question determinable by such strangers as may happen to covet it, or envy the plaintiffs the exclusive use of it.

It is supposed that, by the true construction of the statute incorporating the defendants, the legislature have granted them the right to cross the turnpike. It is scarcely necessary to inquire whether the legislature intended to grant the right of violating the private property which they had before granted to tire, plaintiffs for a valuable consideration; because it is not pretended that the alleged statutory grant makes any provision that they shall be compensated. The right to invade their franchise must therefore be taken, if at all, as a gratuity; indeed it is claimed to be a gratuity. I have only to say that I think the act admits of no such construction as is claimed for it; and t ' that, if otherwise, it would undoubtedly be void within the express provisions of the constitution. (See the act, Sess. Laws of 1836, 493, 499, § 11; Fletcher v. The Auburn and Syracuse Rail-Road Company, 25 Wend. 462; Trustees of the Presbyterian Society of Waterloo v. The Auburn and Rochester Rail-Road Company, 3 Hill, 567.)

It is said, however, de minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another’s property. To warrant an action in such case, says a learned writer, “some temporal damage, be it more or less, must actually have resulted, or must be likely to ensue. The degree is wholly immaterial; nor does the law, upon every occasion, require distinct proof that an inconvenience has been sustained. For example, if the hand of A, touch the person of B., who shall declare that pain has or has not ensued? The only mode to-render B. secure is to infer that an inconvenience has actually resulted.” (Hamm. N. P. 39, Am. ed. of 1823.) “ Where a new market is erected neav " ancient one, the owner of the ancient market may have an action; and yet, perhaps the cattle that would have come to the old market might not have been sold, and so no toll would have been gained, and consequently there would have been no real damage; but there is a possibility of damage.” (2 Ld. Raym. 948.) In Ashby v. White, wherein Powell, J. laid down this rule as to the market, it was held finally by the house of lords that, to hinder a burgess from voting for a member of the house of commons was a good ground of action. No one could say that he had been actually injured or would be; so far from it, the hindrance might have benefitted him. But his franchise had been violated. The owner of a horse might be benefitted by a skilful rider tailing the horse from the pasture and using him; .yet the law would give damages, and, under circumstances, very serious damages for such an act. The owner of a franchise, as well as of other property, has a right to exclude all persons from doing any thing by which it may possibly be injured. The rule is necessary for the general protection of property; and a greater evil could scarcely befall a country than the rule being frittered away or relaxed in the least, under the idea that though an exclusive right be violated, the injury is trifling, or indeed nothing at all.

It is surmised that the plaintiffs have no power to release their right; and that to hold the defendants liable would be to destroy their road. Various difficulties are raised. It is said that, at any rate, the right to be acquired from the plaintiffs must be temporary and cease with their corporate existence. If all this be so, it furnishes no argument for impairing their corporate rights. Beside, if there be a want of legal means to acquire the requisite title, the remedy lies in further legislation. The right of the plaintiffs may as well be made the subject of agreement or appraisal, as the rights of individuals in the land occupied by the road, or any other land.

It is clear, then, that the defendants have, in none of their pleas, made out an answer to the plaintiffs’ right. Do the pleas show that the plaintiffs have mistaken their remedy in bringing trespass? It is said, their right being incorporeal, they should have brought case. Independently of authority, I should have thought this an objection of the merest form. The plaintiffs have, in their declaration, set out an injury which entitles them to compensation; and it undoubtedly contains enough for a declaration in case. It is now objected that, because the plaintiffs have added vi et armis, this vitiates; and the objection is taken by pleas in bar. The cases which hold that the plaintiff must be nonsuited at the trial if he sue in trespass when he should have brought case, or vice versa, are supposed to contain a principle which authorizes these pleas. (Percival v. Hickey, 18 John. 257; Wilson v. Smith, 10 Wend. 324.) If the supposition were correct, the principle will not apply when the pleas are demurred to as amounting to the general issue. Two of the pleas in question are specially objected to for that reason; and must, at all events, be overruled as defective in form. They do no more, at most, than show argumentatively certain facts which, according to the cases cited, would amount to not guilty modo et forma. It may be proper to treat the distinction as a substantial one at the trial; though I cannot but think that where the declaration clearly details a set of facts sufficient to make out a cause of action, and the facts are established at the trial, courts go far beyond what any general principle requires, in saying that, because the plaintiff happens to have miscalled his action in the beginning of his declaration, he shall suffer the penalty of a substantial variance. The name of the action is surplusage. At any rate, there is no precedent for raising the objection by special plea in bar. A plea in abatement showing that the action is improper, as that it is case, when it should have been account or general trespass, is indeed recognized as valid by the hooks cited in Com. Dig. “ Abatement,” (G. 5.) It can be nothing more. Admitting a good cause of action, but objecting to the kind of action brought, is the very definition of such a plea. The pleas in question should have begun and concluded accordingly. Being really pleas in abatement, an objection of form lies against them without a special demurrer; (1 Chit. Pl. 464, Am. ed. of 1840;) and on such pleading judgment is final. (Com. Dig. Abatement, (I. 15.) The pleas failing as a bar, should, for these reasons, I think, be disallowed for any purpose.

Considered as special pleas in bar, they appear also to be defective within Nevins v. Keeler, (6 John. R. 63.) Each plea consolidates two counts, and answers them as one. This mode of pleading began and has been continued in Mr. Chitty’s book; (2 Chit. Pl. 556, N. Y. ed. of 1809; 3 id. 1103, Phila. ed. of 1828; 3 id. 1103, Springf. ed. of 1840;) although the later editions admit that it is bad, at least on special demurrer. (3 Chit. Pl. 1103, note (z,) Springf. ed. of 1840.) The ground taken in Nevins v. Keeler goes farther. The issue tendered is declared to be immaterial. Taylor v. Herbert, (1 Freem. 367,) a case of like pleading in assumpsit, seems to go the same length. In Edmonds v. Walter, (2 Chit. Rep. 291,)—the case of a plea that two libels in different counts were one and the same, and justifying the one—there was indeed a special demurrer; but the plea was held bad in substance. (See 1 Chit. Pl., Phila. ed. of 1828, p. 472, note (h); id. Springf. ed. of 1840, p. 413, 528, 552, 553.) One course mentioned by Mr. Chitty, in this last edition, (p. 528,) is, setting aside the plea on motion. (See the books there cited in note (o.)) This implies something beyond a mere defect of form. It is highly exceptionable pleading, first to aver that the plaintiff’s cause of action is something other than he, has himself made it in his declaration, and then plead to the new case thus fabricated for him. We have often of late set aside such pleas summarily, where they first averred that the general counts in assumpsit were intended of a note, and then went on to answer the note instead of the counts. With the same propriety might a defendant first frame a count for the plaintiff and then demur. Such a demurrer is called a speaking one, and is always condemned as defective. The plea in Nevins v. Keeler was drawn by me while a student, from the form in Chitty. The precedent should have been long since expelled from a book of such general excellence as that; a book almost sure to mislead where it happens to be wrong. The question is discussed by Mr. Justice Bronson, in Sterry v. Schuyler, (23 Wend. 487,) where the defect was treated as matter of substance.

It by no means follows, however, taking the case before us as the pleas would have it to be, that the plaintiffs’ action has been misconceived. The objection is, that their property in the road is incorporeal; and the general rule undoubtedly is, that for an injury to a right incorporeal, case only will lie. This is so in the same sense that case and not trespass must be brought for slander of title; but it does not follow that trespass may not be brought for an entry on the land, even though it lie vacant. Waiving the question whether the act incorporating the plaintiffs makes them owners of the soil either on the line of the old road or the line of deviation, and supposing it does not, they never could have carried out the purposes of their incorporation without an exclusive and corporal possession to the extent of their road. To that extent they actually did take and continue a pedis possessio for many years before the intrusion by the defendants. It does not follow that, because the right to do so was metaphysical, every thing they acquired and used in its exercise must necessarily partake of the same unsubstantial nature. The distinction is' taken in Wilson v. Smith, (10 Wend. 324, 327,) and illustrated by Mr. Justice Sutherland. The result of his argument is, that where the property injured is tangible, though the right to use it in a particular way be a franchise, the person entitled to the use not only may but must bring trespass if the injury be direct. The learned judge instances toll-bridges and ferry-boats. A turnpike road comes obviously within the same category, as much so as the toll-house. The only difference is that, in the one case, timber is shaped into a house, in the other, earth into a road; but both consist of materials wrought by the company into a certain form. Some of the road materials are perhaps purchased and transported from a distance; but whether so or not, they have been worked into the road. Thus modified, they may be treated by the law as having become a physical structure, with as much propriety as if they had been worked into a mill-dam or a bridge. If the estate be perpetual, or for life, seisin may as well be averred of the road by name as of the dam or bridge; if for years, a possession may be averred; and there is in fact an exclusive seisin or possession of a corporal thing. The direct injury may be waived, and the consequential interruption of the incorporeal right redressed by an action on the case; but where you proceed for the direct injury to the fixture constructed in order to its exercise, Wilson v. Smith holds that you must bring trespass. The distinction is not new. In The Queen v. Soley, (2 Salk. 594, 11 Mod. 115, S. C.,) it was said that if the exercise of a corporate franchise of voting for officers be hindered by noise and clamor, it is a trespass; and several old books were cited which show that the violent disturbance of another in the use of any franchise may be redressed by an action of trespass. (See Y. B. 29 Edw. 3. 18; Reg. 94, 103.) So of an easement. In the Y. B. 2 H. 4. 11, it is said of a man having a private way, if another disturb him by a sword, club, or other weapon, he may declare in trespass. (Br., Accion sur le case, pi. 29; Vin., Chimin private, (c) pl. 2, S. C. & S. P.) In Woolr. on Ways, (p. 58,) this case is cited with approbation. A man’s cattle are driven from a common ; trespass lies. (1 Chit. Pl. 141, Am. ed. 1840.) Several other cases quite analogous are mentioned in Wilson v. Mackreth, (3 Burr. 1824,) which is itself in point. The defendant there having dug and carried away turf and peat which the plaintiff had an exclusive right to dig for his own use in the soil of another within certain boundaries marked by meer-stones, the plaintiff brought trespass quare clausum fregit. It was objected that case alone would lie. Lord Mansfield observed, there wanted nothing to answer the objection but to state the case. He said the plaintiff’s right was separate, butted and bomided; a separate right of property, to take the profit of the turf, and to dig it for that purpose. It was exclusive of all others, and the defendant had disturbed him. The right of the turnpike company in the principal case is the same. The result of the authorities is, that where the owner of the franchise is personally interrupted in its exercise, he may have trespass for the injury done to his person. Where property pertaining to its exercise is injured, trespass quare clausum fregit or de bonis will lie, accordingly as the property may be real or personal. All the reasons in Wilson v. Mackreth apply to the principal case. The turnpike company had the exclusive right to a profit a prendre within limits marked by specific boundaries. They had been in the exclusive possession for many years, and the acts of the defendants were an entry and occupation of the thing possessed. Here are all the elements of a trespass quare clausum fregit.

Whether the right of soil was vested in the plaintiffs by the act incorporating them, especially on the line of the old road, may be questionable. Taking it, as perhaps we ought to do upon the pleadings, that the people were the owners, there is difficulty in saying that the legislature intended to confer any thing more than an easement on the plaintiffs. If the right of soil was not in the people, it is doubtful whether even an exclusive way with a right of toll could originally have been granted without providing for some compensation to the individual proprietors. This question, however, could only have arisen as between the plaintiffs and proprietors, and is doubtless gone by lapse of time. If not, the exclusive possession of the plaintiffs is available against the defendants, whom we are obliged to consider as wrong-doers. But in no view, perhaps, can the right of the plaintiffs be deemed more than an easement. The statute does not appear to contain words operating as a grant of more; nor would the nature of the plaintiff s’ claim and exercise of ownership, long as they have been, necessarily amount to any thing more.

As to the line of deviation, there is more plausibility for saying that the right of the plaintiffs is in the soil. The statute speaks of purchasing and holding the land itself, (2 K. & R. 419, 420, § 5,) and provides for compensating the owners by agreement or appraisal.

Independently of these questions, however, we think the plaintiffs are entitled to judgment.

There is no need of leave to amend. No intimation has been given of a desire to plead any title other than the defective one in question, which cannot be sustained. If the defendants have any other title, it may come in under the plea of not guilty. (1 Chit. Pl. 500, Am.ed. of 1840.)

Judgment for plaintiffs on demurrer. 
      
       See Anonymous, (19 Wend. 226 and note;) Dibble v. Kempshall, (2 Hill, 124;) Wilmarth v. Babcock, (id. 194.)
     