Hubbell v. Rochester
New York Supreme Court
In trespass for cutting timber on wild land, the plaintiff having no actual possession, it became necessary, in order< . to maintain his action, that he should establish a construetive possession, by showing title in himself. Oh his commencing this course of proof, the defendant admitted his AL 1, ' title. Verdict for the plaintiff, $3 50, single damages. The circuit judge now certified the above facts.
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In trespass for cutting timber on wild land, the plaintiff having no actual possession, it became necessary, in order< . to maintain his action, that he should establish a construetive possession, by showing title in himself. Oh his commencing this course of proof, the defendant admitted his AL 1, ' title. Verdict for the plaintiff, $3 50, single damages. The circuit judge now certified the above facts. The declaration which was entitled of August term, 1826, recited the statute of April 9th, 1805, (Laws, sess. 28, ch. 94,) and one count averred the trespass to be cone trary to the form of…
1Opinion of the Court
Ouria.
It became necessary at the trial, to establish a constructive possession by showing title. This was essential *to make out a possession. [1] The action was, there-*116tore, necessarily brought in a court of record; for a justice could' not try the question. The defendant could not take away the plaintiff’s right to elect this course by admitting title when he came to. the trial. The title was in question, and the plaintiff, therefore, entitled to single costs upon the statute, (1 R. L. 344, s. 4.)
But we cannot allow the damages to be trebled. By referring to the statute of 1805, though it…
2Cases cited3 opinions
- Wickham v. FreemanNew York Supreme Court · 1815
- Phillips v. CovertNew York Supreme Court · 1810
- Lincoln v. Taunton Copper Manufacturing Co.Massachusetts Supreme Judicial Court · 1851
3Cited by3 opinions
- Johnson v. . ElwoodNew York Court of Appeals · 1873
- Burnet v. KellyNew York Supreme Court · 1854
- Consolidated Cal. & Va. Min. Co. v. BakerU.S. Circuit Court for the District of Nevada · 1904