
    The Salem Turnpike & Chelsea Bridge Corporation vs. Solomon Hayes. The Same vs. William A. Wait.
    The refusal of a judge, on the trial of an action, to dismiss it for an alleged defect in the declaration, is no ground of exception.
    The charter of a turnpike corporation having provided, that any person who should cut or break down, or otherwise destroy, any of the gates on their road, or should dig up or carry away any earth therefrom, “ or in any manner damage the same,” should forfeit and pay a fine not exceeding $50, to be recovered in an action of trespass on the case, to the use of the corporation, in the name of their treasurer; it was held, that if this provision included the case of an obstruction to the road, by means of placing a large rock or a building thereon, (which the court did not decide,) it was not intended to take away any common law remedies'for such injury or obstruction.
    An action of trespass on the case, for an obstruction to a turnpike-road, does not relate to au easement on real estate, within the St. 1840, c. 87, § 1.
    These were actions on the case for obstructions to the plaintiff’s road, tried before Mellen, J., in the court of common pleas.
    The declaration, in the first entitled cause, which came before the court of common pleas by appeal from the justices’ court, set forth, that the plaintiffs, on the 27th of March, 1846, were possessed of a certain turnpike-road leading from Salem to Charles River bridge, and were obliged by law to keep the same open and free from incumbrances and obstructions ; and that the defendant did, at Chelsea, in the said county, on the said 27th day of March, wrongfully and unjustly cause a large and heavy rock to be placed in the travelled part of the said turnpike-road, and wrongfully and unjustly kept the same therein for the space of two days, and much obstructed and stopped the said turnpike and the persons thereupon travelling; and the plaintiffs were put to great expense and trouble to remove the said rock; and other injuries the said defendant did to the said plaintiffs,” &c.
    The declaration, in the second case, was similar, except that the obstruction was alleged to have been occasioned by a large building, and at a different time.
    The act of 1801, c. 63, by which the plaintiffs were incoi porated, provides, that “ If any person shall cut or break down, or otherwise destroy, any of the gates on said turnpike, or shall dig up or carry away any earth from said road, or in any manner damage the same, &c., such persons shall forfeit and pay a fine not exceeding fifty dollars, nor less than ten, &c., to be recovered by the treasurer of said corporation to their use, in an action of trespass on the case.”
    At the trial of the first case, after the same had been opened, out before any evidence had been given to the jury, the defendant moved to dismiss the action, for the following reasons : —
    1st. That the declaration does not allege, that the plaintiffs were incorporated by and according to law; or that they constructed their road and fitted it for public use, as established by their act of incorporation ; or what was the width or course of the road.
    2d. That the cause of action, stated in the plaintiffs’ writ was ground either for an indictment, or for an action on the case, to be brought in the name of +he plaintiffs’ treasurer, under their charter (St. 1801, c. 63, § 10,) to recover the penalty provided therein for injuries to their road; but that an action at common law could not be maintained for any such injury.
    3d. That if an action at common law could be maintained for the cause stated, it should be assumpsit for money laid out and expended, and not an action on the case.
    
      The motion to dismiss being overruled, the trial proceeded, and the jury returned a verdict for the plaintiff. The defendant then moved in arrest of judgment, and to dismiss the action, on the ground, that the cause thereof respects an easement on real estate, which could only be heard and tried in this court and not in the court of common pleas, in which this suit was originally commenced.
    This motion was overruled, and the defendant thereupon alleged exceptions.
    In the second case, the defendant, having pleaded the general issue, which was joined, then moved to dismiss the action on the ground of a want of jurisdiction, as above stated; which motion being allowed, the plaintiffs excepted.
    The cases were argued together, in writing, by J. G. King, for the plaintiffs, and P. S. Wheelock, for the several defendants.
   Metcalf, J.

In the first of these cases, exception was taken to the refusal of the court of common pleas to dismiss the action, because the declaration was defective. This, very clearly, is no good cause for exceptions. It is matter of discretion merely. The question of the sufficiency of the declaration is open on the record, and may be better raised and discussed upon demurrer, or upon a motion in arrest of judgment. And this question has now been argued, on the defendant’s motion in arrest. But we see no fatal defect in the declaration. If it is defective in any thing, it is in the manner of setting forth the plaintiffs’ title, and not in the title set forth.

It is also contended by the defendant, that the acts alleged to have been done by him are not the ground of an action at common law, but of an indictment, or of an action, under the plaintiffs’ charter, brought by their treasurer, for a penalty. The provision in that charter (St. 1801, c. 63, § 10) is, that “ if any person shall cut or break down, or otherwise destroy, any of the gates on said turnpike, or shall dig up or carry away any earth from said road, or in any manner damage the same, &c., such person shall forfeit and pay a fine not exceeding fifty dollars, nor less than ten, &c., to be recovered by the treasurer of said corporation to their use, in an action of trespass on the case.” It may be doubtful, whether this provision extends to the present case. But if it does, still we are of opinion that it was not intended to prevent the plaintiffs from pursuing any common-law remedies for injuries done to their road. This seems to be manifest from the consideration, that only fifty dollars can be recovered by the treasurer for . any damage, which the corporation may sustain ; an amount wholly inadequate to indemnify them in many cases that might occur.

We need not decide, in this case, whether a recovery in the present action would be a bar to an action by the treasurer, nor whether, if he had recovered judgment for a forfeiture, under the provision in the charter, such judgment would be a bar to this action. These questions will be for decision when they arise.

The main question in the present cases is, whether the action respects an easement on real estate, and therefore, by St. 1840, c. 87, ought to have been originally brought in this court. And this question we consider as settled in the negative, by the decision in the case of Hunt v. Hanover, 8 Met. 343. The plaintiffs have a franchise; but they have not an easement on real estate, within the meaning of the statute, as expounded in that case.

In the first action, the exceptions are overruled; in the second, a new trial is to be had in the court of common pleas.  