Legal Opinion

Benedict v. Johnson

New York Supreme Court

Decided December 15, 1869PublishedCited by 7 opinions

Appeal by the plaintiff from an order, made at Special Term, granting a new trial. The plaintiff commenced an action of trespass qtiare clau- ' smnfregit, against the defendant, in a justice’s court, charging him in his complaint with breaking .and entering his close, which ivas described, and digging up the soil, building a. post and board fence thereon, and cutting 'doAvn the. trees standing and groAving thereon, &c.

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Appeal by the plaintiff from an order, made at Special Term, granting a new trial. The plaintiff commenced an action of trespass qtiare clau- ' smnfregit, against the defendant, in a justice’s court, charging him in his complaint with breaking .and entering his close, which ivas described, and digging up the soil, building a. post and board fence thereon, and cutting 'doAvn the. trees standing and groAving thereon, &c. The defendant pleaded title to the premises.’ in question, and gave security; and the plaintiff thereupon commenced this action for the same trespass, to which the defendant…

1Opinion of the Court

By the Court

Foster, J.

The parties owned adjoining farms, and it appeared by the evidence that more than thirty years ago, a crooked fence was constructed on or near the line between them, which was intended for-a line fence. The general direction of the fence, which was about 100- rods in .length, was pretty straight, but it had crooks at several points, at some of which it -diverged on one- side, and at others on the other, from a straight line.

There was much conflict in the testimony in regard to what was claimed by the respective parties to be. the true corners at the extremities of the…

2Cases cited4 opinions

  1. Archer v. HubbellNew York Supreme Court · 1830
  2. Wardell v. HughesNew York Supreme Court · 1829
  3. Harris v. WilsonNew York Supreme Court · 1828
  4. Kennedy v. Harlem RailroadThe Superior Court of New York City · 1854

3Cited by7 opinions

  1. Whittaker v. Delaware & H. Canal Co.New York Supreme Court · 1888
  2. Costello v. Syracuse, Binghamton & New York RailroadNew York Supreme Court · 1873
  3. Davison v. HerringAppellate Division of the Supreme Court of the State of New York · 1897
  4. Donahue v. New York Central & Hudson River RailroadSuperior Court of Buffalo · 1895
  5. Dovale v. AckermanNew York Court of Common Pleas · 1895

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