The pleadings show a degree of caution and secretiveness by resorting to general expressions and the omission of dates, that is not to be commended. We are aware that many gentlemen of the profession adopt this mode of pleading, relying upon the very full power of allowing amendments under C. C. P. We enter our protest against it, as calculated to defeat the object of pleading, which is to give notice of what is expected will be proved at the trial, so as to prevent surprise. This vicious practice would be corrected if the Judges of the Superior Courts, in the exercise of their discretion, would refuse to allow 'the pleadings to be amended after verdict, so as to make the allegations conform to the facts proved, whenever there is reason to suppose that the vicious mode of pleading was adopted on purpose to embarrass the opposite party. In such cases the Court should refuse to give judgment, and *219let the party have the benefit of the verdict and bring another action.
There is no allegation in the complaint of any mistake in the deed of Stone to McCIennahan, by which a life estate is conveyed instead of the fee-simple ; and unless the plaintiff has made out a case on the legal title, he will be obliged to pay the costs in this Court and have the ease remanded, to-the end that the pleadings may be amended, if the Judge-should deem it to be a proper case in which to allow an amendment after verdict.
The plaintiffs counsel on the argument took the ground that he could maintain the action as equitable owner in possession under the provisions of C. C. P. § 55. That provision does not apply ; for the plaintiff has no equitable estate as a purchaser in possession, or other cestui que trust, but has-only a right in’ equity to have Stone converted into a trustee- and decreed to execute a deed in fee simple; and the fact that Stone pending the action executed the' very deed that-he would have been required to execute, does not vary the case; for the deed took effect only from the time of its-delivery, and Stone had no power to make it relate back to-the time of the execution of the deed to McCIennahan. Indeed a Court of Equity has no such power, and could only have required Stone to do what he has done — namely, execute a deed in conformity to the intention of the parties,, and then have “ enforced the right in equity” by a perpetual injunction that Stone and those .claiming under him. should not disturb the title under the deed to McCIennahan, on the principle that “ equity considers that to be done-which ought to have been done.”
As to plaintiff’s right to recover upon the-legal title, we have seen that the deed of Stone executed pending the action does not relate back to the execution of liis deed to McClennahan, But the counsel of the plaintiff insists that he had acquired the legal title by seven years adverse possession. *220■under color of title. The question is, when did the adverse possession begin ? — not at the date of the deed of McClennahan to Mrs. Taylor in 1852, for although the conveyance to 'her was in fee, she was not exposed to an action during the life of McClennahan, for she had the true title during his life time, and was not liable to an action b3r Stone or those ■claiming under him until the death of McClennahan, which as stated in the case, was in 1859. It is not set out at what time in 1859 so plaintiff's counsel takes a starting point— •January 1st, 1860 , to May 20th, 1861, when the statute of limitations was stopped — one year, four months and twenty days ; from January 1st, 1870, to July 22nd, 1876, when the .action was brought — six years, six months and twenty two days ; total — seven years, eleven months and twelve days.
This calculation which the plaintiff’s counsel makes in his brief would do very well, provided the defendant had not ■entered into possession under the deed of Stone to him, executed in 1867. But the defendant had . entered and taken possession some time before the commencement of the action. IIow long before is not set out in the case. It may have been more than one year, eleven months and twelve days. If so, that interrupted the running of the statute of limitations. Here, the plaintiff fails because of the generality of his allegations and the omission to give precise dates ; and in such loose statements, no intendment can be made in favor of the pleader.
The complaint — paragraph 6 — sets out “ that defendants against the will of plaintiff entered and added three feet to the height of plaintiff’s upper dam,” &c. No date is given.
And in paragraph 8, “In addition to the injury caused by the increased height of the dam, defendants entered •upon said land and cut a race,” &c. . No date is given.
' In the absence of any allegation or proof to the contrary, •we must assume that these trespasses were committed before ■■the plaintiff’s title had ripened by seven years adverse pos*221session ; and the only question is, were these acts mere temporary trespasses or were they of a continuing nature, so as-permanently to interrupt the plaintiff’s • adverse possession ?' As to that, there can be no doubt; for the defendants continued to use the dam so increased in height, and the race so cut, for purposes of their own up to the bringing of the action.
As the case goes back, we think it proper to declare our opinion to be, that the reception of the testimony of Stone, as to the fact that the deed to Temple was executed in 1867,. and not in August, 1848, (as it was dated falsely to. overreach the deed to McClennahan íd November, 1848, which fact could have been proved by the subscribing witnesses) was-admissible. His testimony that the boundaries in the deed made by him to Temple in 1867, differed from the boundaries in the deed alleged to have been burnt — executed after the deed to McClennahan — was also competent for the purpose of having the deed obtained in 1867, reformed.- But there is no allegation in the complaint to set up this equity, and-indeed the evidence was immaterial. We also declare our opinion to be, that the trespasses complained of being done on the plaintiff’s land, as he alleges, do not come under the operation of the Mill-dam Act which applies only to “trespass on the case” for acts done on the defendant’s own land to the injury of the plaintiff, by ponding back'water, or other like injuries.
This will be certified and the case remanded.
Per Curiam. Venire de novo.