Smith agt. Hallock, 8 How. Pr. 73

S. B. Strong, Justice. The plaintiff seeks to recover in this action, 1. The land in controversy, as the owner thereof in fee simple. 2. Damages for obstructing him in the use of it to a greater-extent than is authorized by the life (limited) lease to the defendant, and especially for obstructing him in the enjoyment of a private way over a part of it. The first claim is founded on the supposition that the defendant has no right whatever to the enjoyment of the land, and the second upon an admission that he has a limited right to occupy it.

There is a discrepancy between the grounds of the two claims which is contrary to the rules of pleading, and which, in my opinion, is not sanctioned by the provision on the subject in the last addition to the Code of Procedure. The 167th section, as amended by the act of April 16, 1852, provides (subd. 1) that the plaintiff may unite in the same complaint several causes of action, “ where they all arise out of the same transaction or transactions connected with the same subject of action.” This has reference to such causes of action as are consistent with each other; not surely to those which are contradictory.

The latter can not spring from the same transaction, nor can all of them be connected with the same subject matter for the palpable reason that they can not coexist. Besides, the 5th subdivision retains the provision in the Code previously enacted, authorizing the junction of claims to recover real property, with or without damages for withholding thereof and the rents and profits of the same.

That would indicate that the union in such cases should go no further; that it should not extend to a claim for the interruption of the enjoyment of an incorporeal right in land, to which the plaintiff at the same time had the.absolute unencumbered and unqualified title in fee simple. The claim of a special right in one is virtually an admission of the general right of possession (at least for the time being) in another; and the damage in such case is not for withholding the land, but for interruption of its qualified enjoyment.

The plaintiff must amend his complaint by limiting his claim, at his election, either to the recovery of the land, with damages for withholding it and the rents and profits, or to the damages caused by any unauthorized use of it by the defendant, and the interruptions caused by the defendant to the plaintiff’s qualified right to its enjoyment, or to the enjoyment of any part, or right in such part, of it. The plaintiff may so amend in twenty days after service of a copy of the order to be entered pursuant to this opinion and without costs.

The defendant’s costs of this motion, amounting to ten dollars, must abide the event of the suit.