Du Val v. Du Val

Bowie, C. J., delivered the opinion of this Court: This was an action for an assault and battery brought by tbe appellee against tbe appellant. Among other defences, the appellant pleaded that the plaintiff, at the time when tbe assault was committed, had wrongfully entered ¹⁵⁴ upon the lands of the defendant, and was trespassing when the defendant warned him to leave, and he, plaintiff, refused; to which the plaintiff replied by way of new assignment, “ that over said premises, and along said road where the shooting occurred, he, the plaintiff, had a right of way;” on which replication, issue was joined. The plaintiff, to maintain the issue joined, offered to prove that a road existed near where the alleged trespass was committed, more than twenty years ago; and further proved, that the title and possession of the real estate now held by the plaintiff and defendant, over which said road passes, was in the grandfather of the plaintiff and defendant up to the year 1844, under whom both the defendant and plaintiff claim, and within twenty years from the institution of this action. To the admissibility of which, for the purpose of showing the right of way over the defendant’s land, the defendant objected, upon the ground that the evidence of the witness proved there was a unity of possession, within twenty years, existing in the grandfather, and no adverse possession could commence while this unity of possession existed.

Which objection was overruled, and the testimony permitted to go to the jury, to which the defendant excepted. The objection rests upon the assumption, that the testimony excepted to was offered for the special purpose of establishing a right of way, by adverse possession, and a part of the evidence being inconsistent with that hypothesis, the whole should have been rejected. The record does not present this limited view of the object of offering the testimony. The offer was to maintain the issue generally, viz: “a right' of way over the ‘locus in quoat the time when the supposed trespass was committed.

There is nothing circumscribing the object of the plaintiff’s offer, except the language of the defendant’s objection, which is not sufficient to countervail the statement of the bill of exception. If there was any supposable case in which such a right of way might exist, other than by adverse possession, the ruling of ¹⁵⁵ ilie Court below was right, for it* was not competent for the defendant to exclude evidence on one ground which might have been admissible on