
    Jacob H. Martin vs. Jane Houghton.
    -To constitute a 'license which will amount to a defense to an action of trespass, there must he a permission to enter upon the premises, which may he express, or implied from circumstances.
    Where the defendant had been iri the habit, for thirty years, of visiting the house of the plaintiff, and crossing his grounds without objection, the families being upon intimate terms; Held that these facts would justify the jury in finding an implied license.
    THIS is an appeal from the judgment of the county court of Albany county reversing the judgment of a justice of the peace. The plaintiff complained against the defendant in trespass for crossing his premises after the defendant was forbidden to do so. The defendant interposed an answer containing, 1st. A general denial; 2d. License from the plaintiff to cross; 3d. That the public had a right to cross the path. The action was tried by a'jury, who rendered a. verdict in favor of the defendant. The additional facts appear in the following opinion.
    
      J. H. Clute, for the appellant.
    
      Ira Shafer, for the respondent.
   By the Court, Ingalls, J.

It appears from the evidence of the plaintiff that the defendant had been in the habit of coming upon the premises of the plaintiff for a series of years, and within the two years next prior to the trial she passed through the door yard; sometimes upon one side of the house and at other times upon the other side. There was a path, some part of the time, upon which the defendant traveled. The plaintiff testified that the defendant came to his house a number of times, but he did not know and could not testify whether he had sent for her. That he forbade her crossing his place, at different times, and she said she would go, and did go. That he told the defendant she should not cross the fath, but might cross along the stone wall. That she afterwards passed around the house, and he then told her she should not cross his place at all.

The defendant testified, in substance, that she had lived at her brother’s since she was born, and that there had been a path from her brother’s to the plaintiff’s which she had traveled for thirty years. That the plaintiff forbade her going on the path, but gave her permission to go along the stone wall; and that she was going along the wall when the boy told her to go off the rye; that she had traveled that path in going to the plaintiff’s, when his mother was sick; that the families had been on intimate terms; that she had seen the path plowed up and a furrow plowed for a path: I think from all the evidence the jury were justified in finding that no trespass was committed by the defendant, upon the premises of the plaintiff, after she was forbidden to enter thereon. The plaintiff testified that the defendant had been in the habit of visiting his house, and would not swear that such visits were not by invitation. He testified that he told the defendant she should not cross the path, but might cross along the stone'wall. There is nothing in the evidence to show where the stone wall was located, or that in going around the housé she did not go along the wall. The evidence does not show at what period, after she was forbidden to cross the premises, she crossed the same, nor but that such crossing was along the stone wall. It is quite apparent that the families had been on friendly terms, and the defendant had been a welcome visitor at the plaintiff’s house, and for a period of thirty years had been accustomed to travel upon the path spoken of.

It can hardly be inferred from the evidence that the plaintiff, at the time he forbade the defendant crossing upon the path, and at the same time gave her permission to travel along the wall, supposed the defendant guilty of trespass, for which he designed to hold her accountable. The jury were also justified, iron; the evidence, in finding that the defendant did not enter upon the premises in violation of the permission of the plaintiff, after she ivas forbidden.

If inferences are to be indulged, they must be in support of and not against proceedings in a justice’s court; and where a party seeks to reverse a judgment, he must show affirmatively that error has been committed, and that he has been prejudiced thereby. The defendant interposed one defense, that the entry upon the premises was by the license of the plaintiff. To constitute a license which amounts to a defense to an action of trespass, there must be a permission to enter upon the premises, which may - be express or implied from circumstances, and' it has been held that familiar intimacy between families may be evidence from which a general license for such purpose may be presumed. (Adams v. Freeman, 12 John. 408. Byron v. Blakeman, 22 Barb. 336. Haight v. Badgley, 15 id. 502. Pierrepont v. Barnard, 2 Seld. 279.)

In the last case the question of license is fully considered. Certainly where a party has for years been in the habit of yisiting the house of another without objection, a license will be implied. Any other rule would be unreasonable and oppressive. In this case the defendant for thirty years had exercised that privilege—the families being upon intimate terms—and upon this ground alone the jury would in my judgment have been justified in finding an implied license. The defendant’s case, however, does not rest there. Both the plaintiff and the defendant testify to an express permission to the defendant to pass along the stone wall, and the evidence does not show that the defendant entered the premises after that permission was revoked; nor that the defendant went elsewhere than along the wall, after the peimission was given.

I do not think a fatal error was committed in allowing the witnesses to testify in regard to the length of time the path had been there. That evidence was pertinent upon the question of license, to ascertain how long the defendant had been in the habit of visiting the plaintiff's house, and by what wav she went, with a view to show how marked and notorious had heen the exercise of the privilege, as all these circumstances had a tendency to characterize the transaction, and were properly considered in determining the nature and extent of the permission relied upon to establish the license. It did not by any means follow that those facts bore necessarily upon a question of title. Indeed the evidence does not show that the defendant attempted to assert any title or absolute right to enter upon the premises. On the contrary, when the plaintiff forbade the use of the path, the defendant, by the permission of the plaintiff, went along the wall.

[Albany General Term,

September 18, 1865.

Ho principle is better settled than that a party may litigate a question of license in a justice’s court. (Dolittle v. Eddy, 7 Barb. 75. Ex parte Coburn, 1 Cowen, 568.) In Kent's Com. (vol. 3, p. 452,) the author says: “License is an authority to do a particular act or series of acts upon another’s land without possessing any estate therein. It is founded on personal confidence, and is not assignable, nor within the statute of frauds.” (See also Pierrepont v. Barnard, 2 Seld. 279.)

In reviewing proceedings of justices’ courts, great liberality is to be exercised, and a judgment is not to be reversed for a trivial error which does not affect the merits. (Bort v. Smith, 5 Barb. 283. Spencer v. S. and W. R. R. 12 id. 382.)

I am of opinion that the defendant established a license to enter upon the plaintiff’s premises, which constituted a defense to the action, and that no error was committed. by the justice in admitting evidence, which should reverse the judgment of the justice’s court. The judgment of the county court must be reversed, and the judgment of the justice affirmed, with costs.

Hogeboom, Miller and Ingalls, Justices.]  