majority">Morse, <T.

This is an action of trespass, commenced in justice’s court. The declaration averred :

“ That the defendant, on, to wit, the second day of October, A. D. 1S83, and on divers other days from said second day of October, A. D. 1883, up to the time of the- commencement of this suit,* with force and arms, the close of the said plaintiff, situate in the township of. Bethany, in said county, and known and described as being the N. E. ¿ of the N. E. ¿ of section No. 15, township No. 12 N., of range 2 W., in Gratiot county, Michigan, broke and entered, and with his feet, in walking, and with cattle, to' wit, horses, hogs, and oxen, trod down, trampled upon, and destroyed the grass and corn of the said plaintiff, then growing, and other injuries to him then and there did, against the peace of the People of the State of Michigan, and to the plaintiff’s damage of $100.”

The defendant pleaded orally the general issue.

It appears from the return of the justice, made upon appeal to the circuit court, that, upon the trial before him, it appeared from the plaintiff’s testimony that the—

“ Trespass alleged was committed while working on the road. Defendant, by motion allowed, amended his plea as follows, to wit: that if the defendant did anything upon the premises in question, he did it by virtue of his office of path-master of the district wherein the land is situated.”

The cause was then tried, and judgment rendered for the plaintiff for six cents damages, and eight dollars and four cents costs.

The bill of exceptions, settled by the parties and signed by the judge who presided at the trial in the circuit court, shows that the trial there proceeded under the same declaration as in justice’s court, but the plea of the defendant was confined to the general issue.

The plaintiff gave evidence that on the second day of October, 1883, and other days thereafter,-—

“ The defendant made certain excavations in the soil in the road or highway running on the north side of the said premises, by plowing and scraping the same ; that said excavations were made at least thirty feet south of the center of the highway or road aforesaid, next to his fence inclosing the premises described in the declaration ; that said plaintiff was *553in possession of the premises so described iij, plaintiff’s declaration, subject to the easement and right of the public in that portion thereof in said highway. Said plaintiff also testified that said excavations so made as aforesaid were without his consent, and that he was damaged thereby.”

The defendant then gave in evidence that the road in which the excavations were made was a public highway, four rods wide, of twenty years’ user, and upwards; that he was ■overseer of highways in the district in which this part of the highway was situated ; that the plowing and scraping was done by him, and under his directions, as such overseer, for the purpose of putting said road in better and necessary repair, so that it would be in a proper and suitable condition for public travel. The circuit judge ruled that this defense •could not be entertained under the pleadings, and instructed the jury to find a verdict for the plaintiff for nominal damages. Verdict and judgment for six cents, and costs of suit.

¥e think the circuit judge was in error.

It is very doubtful if the plaintiff, under his declaration and the evidence introduced under it, was entitled to recover on his own showing. While the description of his close, being a government subdivision, technically embraced the south half of the highway where the excavations were made, good pleading would require that some notice should be given the defendant that the trespass complained of was in a public highway, instead of a general allegation of the destruction of grass and corn upon a certain quarter of a quarter section, leading naturally to the conclusion that it was upon the inclosed and cultivated land of the plaintiff. There was no distinct allegation of title, and under the declaration the possession only was in issue: Vandoozer v. Dayton, 45 Mich. 250.

When the plaintiff’s own evidence located the acts complained of in the highway, the query arises if it was not necessary for him to go further and show that the acts were unlawful. His possession, as shown, was subject to the easement of the public, and it is not clear that the act of plowing and scraping the highway was a trespass prima facie.

*554At any rate, the defendant had a right to make the defense he did, which was a good one. As the ease stood, the verdict should have been for the defendant.

The counsel for the plaintiff argues that the notice allowed by the justice to be filed by the defendant raised the question of title, and ousted that court of jurisdiction. If this be true, the plaintiff was not entitled to judgment, in justice’s court or upon appeal. But we do not think the question of title came in issue.1 The plaintiff’s own evidence developed that he did not have exclusive possession of the premises upon which the alleged trespass was committed, and that his possession was subordinate to that of the public. The defendant, therefore, had the right to show that what he did was lawfully performed, under and by virtue of this possession of the public, and in the legitimate furtherance of the-rights and needs of travel in a public highway.

The judgment of the court below is reversed, and a new trial granted, with costs of both courts.

The other Justices concurred.

See Keyser v. Sutherland, 59 Mich. 465.

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