Griffith v. McCullum
New York Supreme Court
ACTION for breaking and entering the close of the plaintiff. Defense, that the locus in quo was a public highway, and that the fences removed were an obstruction to the highway, and a public nuisance. The defendant McCullum, was the sole commissioner of highways of the town, (Pike,) and, as such, he caused the fence to be removed. The defendant Van Slyke removed the- fence by direction of MeCullum.
Read the full summary
ACTION for breaking and entering the close of the plaintiff. Defense, that the locus in quo was a public highway, and that the fences removed were an obstruction to the highway, and a public nuisance. The defendant McCullum, was the sole commissioner of highways of the town, (Pike,) and, as such, he caused the fence to be removed. The defendant Van Slyke removed the- fence by direction of MeCullum. The evidence proved, or tended to prove, that the fence of the plaintiff was built and stood within the bounds of the highway as laid out and opened. The counsel for the plaintiff requested the…
1Opinion of the Court
By the Court, Marvin, J.
In my opinion the judge should have charged as requested, and his refusals so to charge were errors. It follows that the charges, as made, relating to the right of the defendants to remove the fence, were erroneous. The learned judge was of the opinion that fences erected within the bounds of the highway are nui*564sanees per se; thus making all encroachments upon public highways nuisances. This, I think, is erroneous. This precise question was involved in the decision in this district, in Peckham v. Henderson, (27 Barb. 207.) In that case the highway was laid out in 1815,…
2Cases cited2 opinions
- Harrower v. RitsonNew York Supreme Court · 1861
- Peckham v. HendersonNew York Supreme Court · 1858
3Cited by17 opinions
- Lawton v. . SteeleNew York Court of Appeals · 1890
- City of Denver v. MullenSupreme Court of Colorado · 1884
- Broadbelt v. LoewAppellate Division of the Supreme Court of the State of New York · 1897
- City of Yonkers v. Federal Sugar Refining Co.Appellate Division of the Supreme Court of the State of New York · 1910
- Hutchins v. SmithNew York Supreme Court · 1872
12 more not listed; retrieve them via the Exa API.