
    White against Spencer.
    Although an answer, which in an action for flowing land, sets up the possession and enjoyment during twenty years of an easement to do so, without averring that it was exercised adversely to the owner of the land, would bo bad on demurrer, still, if the plaintiff take issue on the facts alleged, the answer will be held sufficient to allow evidence of the adverse user on the trial.
    The court may reject evidence to' support immaterial issues, but where issue of fact is taken on a defence defectively stated, evidence to prove such defence should not he excluded on the ground of such defect.
    Action commenced in July, 1851, for damming a water c lurse, by means of which the plaintiff’s saw-mill, situated higher up the stream, was, as it was alleged, obstructed by hack water. The defendant in his answer denied the material allegations of fact in the complaint. He also set up the following facts by way of defence: that at the place where it was alleged in the complaint the defendant had erected the dam complained of, “there had been erected and maintained, for more than twenty years before (the injury sued for), a mill dam, upon and across the said creek, of the same or greater height, which set back the waters upon and flowed the premises alleged in the complaint to have been in the possession of the plaintiff, to the same or greater extent, and caused the same or greater obstruction to the flow of water from the said last mentioned mill, as was caused or made by means of the said dam and obstruction (of the defendant mentioned in the complaint), which dam and water power created thereby, was and had been, during all the time above mentioned, used for the propulsion of a mill and other machinery, without hindrance or molestation from the persons owning or occupying the mill and premises alleged in the complaint to have been in the* possession of the plaintiff.” The plaintiff replied, taking issue upon the above mentioned allegation in the answer by a particular denial of the facts stated therein.
    On the trial, which took place at the Orleans circuit, ic May, 1852, before Mr. Justice Marvin, after the plaintiff had given evidence tending to sustain the action, the defendant offered evidence in support of the answer, to the effect, and, as it is stated in the bill of exceptions, in the language of the answer. The evidence was objected to by the plaintiff’s counsel, on the ground that damming the stream and setting back of the water upon the plaintiff’s premises was not stated in the answer to have been adverse to the rights of the owner of the land so overflowed. The judge sustained the objection and excluded the evidence, and the defendant’s counsel excepted. Verdict and judgment for the plaintiff*. After a judgment of affirmance, upon an appeal to the general term, the defendant appealed to this court.
    
      B. L. Bessac, for the appellant.
    
      S. E. Church, for the respondent.
   Denio, C. J.

The defendant’s counsel is correct in the position that, to render the possession and enjoyment of an ousement upon the land of another person, for twenty years or more, a bar to an action by the owner of the land, such possession must appear to have been adverse to the rights of such owner; for if it were by license, and without claim of right, no length of enjoyment would prejudice the title of the proprietor. The idea of adverse possession being therefore part of the legal definition of this species of title, it follows, that a party, in pleading such a title, must allege in terms a state of facts which, by necessary inference, would show that his possession was hostile to the party against whom such title is set up, or to those under whom such party derives title. In Colvin v. Burnet (17 Wend., 564), the plea in an action on the case for flowing the plaintiff’s lands, like the answer in this case, stated an uninterruped use for twenty years, without alleging that such use was adverse or under a claim of right; and for that defect the plea was held bad on demurrer. But the plaintiff in the present case, instead of demurring, took issue upon the allegation, evidently understanding it to amount to a defence to the action, if it were true ; and no objection to its sufficiency was made until the defendant offered evidence in support of it on the trial. I am of opinion that the plaintiff, having treated this allegation in the answer as a sufficient statement of a defence, by replying to it, and by going to trial without objection, is precluded from objecting to evidence to sustain it. In Meyer v. M’Lean (1 John., 509; S. C., 2 id., 183), in an action on a judgment, the defendant pleaded nil debit, to which plea he annexed a notice that he would prove on the trial that the amount of the judgment had been levied by virtue of an execution issued thereon. It is well understood that nil debit is not a proper plea to an action on a record. This plea was therefore bad on demurrer, and it was consequently not the general issue contemplated by the statute authorizing notice of special matter to be annexed to the general issue. The plaintiff, however, did not demur, but brought the cause on to trial, and then objected to the evidence which the defendant offered under the notice. The testimony was received, and the defendant had a verdict. On a motion for a new trial the court held the ruling to be correct, saying that by going to trial the plaintiff admitted the plea to be valid as a general issue, and that it was not the province of the judge at nisi pins to decide on the pleadings. The plaintiff subsequently moved in arrest of judgment, but that motion was also denied, on the ground that he had treated the plea as a legal one. Reynolds v. Lounsbury (6 Hill, 534) was replevin in the cepit, but the declaration omitted to allege that the taking was wrongful, as the statute requires. The defendant pleaded, and on the trial he objected that the issue was immaterial, on account of the defect in the declaration. The objection was overruled. On error to the supreme court (the original action being in the common pleas), it was decided that, by omitting to demur, the defendant had precluded himself from objecting to the evidence-; and the defect upon the record was held to be cured by the verdict, on the theory that the judge would not have allowed a recovery by the plaintiff without proof that the taking was in fact wrongful. The doctrine established by these cases is, that a defective pleading, though the defect be one of substance, .will not warrant the judge at the circuit in excluding evidence of the claim or defence thus imperfectly set up. It is apparent upon the face of this answer that the defendant intended to set up a defence arising out of a prior occupancy of the land flowed for twenty years, for the facts stated in the answer would be sufficient juma facie evidence to establish that defence, provided nothing was shown on the part of the plaintiff to qualify the act of the defendant or those under whom he claimed, as that the damming and setting back the water was by the permission of the owner of the land, or that it was accompanied by some circumstance which would deprive it of the character of an adverse invasion of the rights of such owner. It'would be the duty of the judge to overrule the defence, unless the proof made out such a case as the law contemplates j that is to say, unless the act of obstructing the stream appeared to be adverse to the title of the owner of the land overflowed. If, therefore, the defendant had succeeded in obtaining the verdict, the judgment in his favor would not have been arrested or reversed on account of the defect in; the answer. The case would be within the ninth subdivision of the title of the Revised Statutes concerning amendments, which declares that a judgment shall not be affected on account of the omission of any allegation or averment of any matter, without proving which the jury ought not to have given the verdict. (2 R. S., 425.) The provision in the Code is still broader, and would authorize the supplying the averment omitted after judgment. (§ 173.)

We have decided, it is true, that it is the duty of the judge, on the trial, to reject evidence offered in support of immaterial issues. (Corning v. Corning, 2 Seld., 97.) But an issue is not immaterial within the meaning of this rule on account of the omission of some averment in a pleading which is essential to the full legal idea of the claim or defence which is attempted to be set up. If the court can plainly see, as in this case, what the matter really attempted to be pleaded is, the issue is not immaterial, though it may be defectively stated. Judge Jewett, in giving the opinion of the court in the case just referred to, takes the proper distinction between such issues as are wholly impertinent and foreign to the merits of the controversy between the parties, and cases in which material matter is omitted to be stated in a pleading, otherwise pertinent and proper. It is only in the case of impertinent issues that the judge is authorized to reject the evidence.

The proof offered in this case was competent, though the offer, like the pleading, omitted to characterize the obstruction as adverse. The defendant was entitled to prove the fact of a continued obstruction for twenty years at the place where it was alleged he had maintained the dam complained of, and it would be for the jury to determine, from all the circumstances of the case, whether it was hostile or permissive.

The judgment of the supreme court should be reversed and a new trial ordered.

Hubbard, J.

On the trial the defendant offered to show, in defence of the action, that at the place where the dam on his premises now stands, there had been erected and maintained, for more than twenty years before the alleged injury, a dam across the Oak Orchard creek, which set back the water upon and flowed the premises mentioned in the complaint to as great an extent as they were flowed during the time the plaintiff was in possession thereof. The evidence thus offered was rejected by the court upon the objection that it was not admissible under the answer. This ruling was erroneous. The answer contained an averment substantially in the language of the offer. The object of this averment was to interpose the defence of adverse enjoyment. The answer failed to allege that the enjoyment was adverse, and, in this respect, it was a defective pleading. (Parker v. Foote, 19 Wend., 313.) To authorize the presumption of a grant, on which the doctrine of adverse user proceeds,' it must appear that the enjoyment was not only uninterrupted, but hostile in its inception and continuance, and under a claim of right. The answer would, I think, have been held bad on demurrer. (Calvin v. Burnet, 17 Wend., 564.) But although concededly a defective pleading, the parties having gone down to trial with the issue of adverse user understandingly presented, it should have been held sufficient to admit the evidence. The rule is well settled, that on the question of evidence to support a cause of action or matter of defence, a technical defect in a pleading should be disregarded on the trial.

• Judgment must be reversed and a new trial granted, costs to abide the event.

Judgment accordingly.  