Cornell & Clarke v. Butternutts & Oxford Turnpike Co.
New York Supreme Court
This was an action on the case tried at the Chenango circuit in September, 1839, before the Hon. Robert Monell, one of the circuit judges.
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This was an action on the case tried at the Chenango circuit in September, 1839, before the Hon. Robert Monell, one of the circuit judges. The suit was brought by the plaintiffs in their proper names, describing themselves as “ commissioners of highways of the town of Guilford, in the county of Chenango,” against the defendants for entering upon and taking possession of a public highway, in the town of Guilford, and of a *'public bridge crossing the Unadilla river, part of the said high- [* 366 ] ■way, previous to the highway and bridge being appraised and paid for as private propery, as they…
1Opinion of the Court
"By the Court,
Nelson, C. J.
It is conceded, that no pri- [ *367 ]
vate action lay at common law in behalf of these plaintiffs for an occupation or disturbance of the road; the remedies there are those applicable to a public nuisance ; and if maintainable at all, it must be upon the statute. It is also a familiar principle, that in the absence of a common law remedy, the party is.confined to that given by statute. If there be a common law remedy, and the statute contains no negative words, it may still be resorted to, 5 Johns. R. 175. Yielding to the correctness of this view of the case, the counsel…
2Cited by7 opinions
- In re Department of Public ParksNew York Supreme Court · 1889
- Town of Guilford v. CornellNew York Supreme Court · 1854
- Moore v. . Brooklyn City R.R. Co.New York Court of Appeals · 1888
- Mairs v. Baltimore & Ohio RailroadAppellate Division of the Supreme Court of the State of New York · 1902
- Sipperly v. Troy & Boston RailroadNew York Supreme Court · 1853
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