Smith v. Wiggin
Supreme Court of New Hampshire
Writ op entry. The count claims to recover a tract of land in Dover described by metes and bounds. The plaintiff moves to amend this count so that it shall claim to recover “ a right of way or passage from Chapel street at any and all times with teams,” &c., over and across the said tract of land.
Read the full summary
Writ op entry. The count claims to recover a tract of land in Dover described by metes and bounds. The plaintiff moves to amend this count so that it shall claim to recover “ a right of way or passage from Chapel street at any and all times with teams,” &c., over and across the said tract of land. For the purposes of this case, the parties agree that said count is brought for said right of way and for nothing else, and the question whether a mere right of way can be recovered under either the original count or the count if amended as proposed, as well as the questions arising upon said motion…
1Opinion of the CourtNesmith, J.
The general rule is, that the right of the public or of individuals to the use of land of others for a precise and definite purpose, not inconsistent with a general right of property in the owner of the soil, is, in contemplation of law, an easement or franchise, and not a right of property in the soil, even though it deprive the owner of all useful or available beneficial interest in the land. Harback v. Boston, 10 Cush. 297. If such easement be a right of way, this consists in a right to use the surface of the soil for the purpose of passing and re-passing, and the incidental right of…
2Cases cited4 opinions
- Green v. LiterSupreme Court of the United States · 1814
- Champlain & St. Lawrence Rail Road v. ValentineNew York Supreme Court · 1853
- Jackson v. MayNew York Supreme Court · 1819
- Northern Turnpike Road Co. v. SmithNew York Supreme Court · 1852
3Cited by1 opinion
- Fresno Etc. Co. v. Southern Pac. Etc. Co.California Supreme Court · 1901