
    * Isaac Strout and Another, Plaintiffs in Error, versus John Berry.
    tn trespass quare clausum frcgit, brought before a justice of the peace, the defendant cannot give evidence of a right of way under the general issue.
    Such a right of way used for twenty years before the supposed trespass is a sufficient defénce.
    This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, upon an appeal from the judgment of a justice of the peace, before whom the action was commenced; in which the defendant in error was original plaintiff, and the plaintiffs in error original defendants.
    The action was trespass for breaking and entering the close of the plaintiff in Limington, and prostrating two rods of his fence.
    The defendants severally pleaded not guilty, with a reservation of liberty “ to file any brief statement, or give any justification under this issue.” Issue being joined, the judgment of the justice was against the defendants, who appealed therefrom to the Common Pleas, and the cause was tried in that court upon the same issue.
    At the trial, after the plaintiff had proved the trespass as alleged, the defendants offered to prove, by the testimony of witnesses, that the locus in quo was a private way, and that it had been uninterruptedly used and occupied as such, by the defendants and others, for twenty years next before the commencement of the plaintiffs’ action The court refused to admit the evidence, and directed the jury, that, in all actions of trespass quare clausum fregit, originally commenced before a justice of the peace, if the defendant intends to contest the plaintiffs’ title to the close wherein the supposed trespass is alleged to have been committed, or to show a title to the same in himself, he must inform the justice thereof by a special plea, or in some other way; in which case the cause ought to be removed to the Court of Common Pleas; otherwise he will have no right to contest the plaintiff’s title, or to justify by setting up a title of his own.
    * The jury returned a verdict for the plaintiff, and the [ * 386 ] defendants tendered a bill of exceptions to the opinion and direction of the court, and the same was allowed and sealed by the first justice.
    The errors assigned were in substance the refusal of the court to receive competent evidence of a right of way offered by the defendants, and the misdirection of the court to the jury.
    
      Holmes, for the plaintiffs in error,
    contended that this was not a case within the statute of 1783, c. 42, describing the power of justices of the peace in civil actions. The second section of that statute precludes a defendant, in an action of trespass brought before a justice, to offer any evidence that may bring the title of real estate in question. And, by the seventh section, a defendant, in all civil actions triable before a justice of the peace, except such actions of trespass, wherein he means to avail himself, by pleading the title of himself, or any other person, &c., shall be entitled to all evidence under the general issue, which by law he might avail himself of under any special plea in excuse or justification.
    In this case, the evidence offered by the defendants, and refused by the Court, was not such as might bring the title of the estate in question. The evidence was only of a right or easement in the land, perfectly consistent with the plaintiff’s title to it. Such evidence they were entitled to produce under the general issue, by the seventh section, above cited. Twenty years’ use of an easement is a good bar to trespass. Here the defendant offered evidence of the use of the way for twenty years before the action was brought.
    
      King, for the defendant in error,
    cited and relied on the case of Spear vs. Bicknell, 
       as decisive of the question before the Court.
    
      
      
        Mass. Rep. 125.
    
   Per Curiam.

The defendants, in the trial of the original action, offered, in excuse of the trespass which had been proved, evi dence of the existence, and ol the occupation by themselves and others, of a private way in the locus in * quo, [ * 387 ] for twenty years before the commencement of the action.

It is true, that twenty years’ occupation of a way or other easemen is a sufficient bar to an action of trespass. But the twenty years are to be reckoned from the date of the supposed trespass, and not from the commencement of the action brought for it. So that, if the evidence had been admissible in the case, it would not have been a sufficient bar to the action.

But, whether the evidence offered would have been a good defence or not, we are all of opinion, that the defendants could not avail themselves of it, under the general issue, in this case. In Spear vs. Bickwell, we held an easement in the land of another to be within the provisions of the statute of 1783, c. 42, although in common parlance it be not called real estate. We still think the opinion there given to be the true construction of the statute; and it follows from it, that the defendants, in the case brought before us by this writ of error, had no right to give evidence of such an easement, unless specially pleaded. If it were otherwise, a defendant in trespass would always have it in his power, by pleading the general issue before a justice, to oust this Court of its appellate and final jurisdiction, in cases wherein it was clearly the intention of the legislature that such jurisdiction should remain to the Court.

Let the judgment be affirmed, with costs for the defendant in error. 
      
      
         [It is presumptive evidence of a grant of the right of way, but the possession itself cannot be pleaded in bar. 2 Stark. Ev. 914, 2d Eng. ed. — Ed.]
     