Whiting v. Dudley
New York Supreme Court
Error from the Steuben common pleas. Whiting sued Dudley in a justice’s court, for trespass quare clausum fregit. This suit was commenced on the 19th August, 1834, and the plaintiff declared laying the trespass on the 28th August, 1828,. with a continuando.
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Error from the Steuben common pleas. Whiting sued Dudley in a justice’s court, for trespass quare clausum fregit. This suit was commenced on the 19th August, 1834, and the plaintiff declared laying the trespass on the 28th August, 1828,. with a continuando. The defendant pleaded the general issue, and gave notice that on the trial he would prove that the locus in quo was and remained a public highway, and that the acts alleged as trespasses were done in the removal of obstructions and in the repair of the highway. On the trial the plaintiff proved that the defendant had repeatedly torn down…
1Opinion of the Court
By the Court,
Cowen, J.
It is truly said by the plaintiff’s counsel, that he proved an exclusive possession in himself; and having shown the trespass in pulling down the fences of his enclosure, he had, if he had stopped there, made out the full requisites of a recovery before the justice. But he admitted a right in the defendant to tear down the fence, which did away the effect of his enclosure, and then he sought to maintain his action by showing a change of the highway.
It is objected that the defendant could not, before the justice, be legally received to justify^ his acts on the ground that…
2Cases cited4 opinions
- Striker v. MottNew York Supreme Court · 1831
- Kellogg v. IngersollMassachusetts Supreme Judicial Court · 1806
- Noyes v. ChapinNew York Supreme Court · 1831
- Fleet v. YoungsNew York Supreme Court · 1831
3Cited by6 opinions
- Little v. . DennNew York Court of Appeals · 1866
- Ostrom v. PotterMichigan Supreme Court · 1888
- State v. CottonSupreme Court of Minnesota · 1882
- Soule v. StateWisconsin Supreme Court · 1865
- State v. DoaneWisconsin Supreme Court · 1861
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