Fowle v. Bigelow
Massachusetts Supreme Judicial Court
This was an action of the case for opening and leaving open a gate across a private way, by which the plaintiff’s land was exposed to the inroads of cattle, &c. The action was tried upon the general issue, at the sittings here after the last November term, before Parker, J. The defendant admitted the opening of the gate as alleged, and claimed a right to have the way continue open.
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This was an action of the case for opening and leaving open a gate across a private way, by which the plaintiff’s land was exposed to the inroads of cattle, &c. The action was tried upon the general issue, at the sittings here after the last November term, before Parker, J. The defendant admitted the opening of the gate as alleged, and claimed a right to have the way continue open. The * way was from land formerly belonging to one [ * 380 ] Samuel Benjamin to the public highway. The said Samuel, on the 15th of March, 1791, conveyed it to William Hunt and Samuel Jackson, “ with full liberty to…
1Opinion of the CourtSewall, J.
The plaintiff’s right of action depends altogether upon the question, whether the gate, which the defendant opened and left open, had been lawfully erected by the plaintiff, upon a road over which the defendant claims a right of passing and repassing as in an open road, not liable to any obstructions or encumbrances.
The defendant purchased of Daniel Sanger, in 1808, a tract of land bounded on the road. At that time, and for several years before, the road had been open and unencumbered, and it so continued for more than two years afterwards.
The plaintiff contends, however, that this was not an…
2Cited by16 opinions
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- Morrill & Whiton Construction Co. v. City of BostonMassachusetts Supreme Judicial Court · 1904
- Ditson v. DitsonSupreme Court of Iowa · 1892
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