Hess v. Buffalo & Niagara Falls Rail Road
New York Supreme Court
APPEAL from an order overruling a demurrer to the complaint. It" is.alleged in the complaint that the plaintiff is and was &c. the owner in fee simple, and was &c. and is in the possession of a certain piece or parcel of land, a garden and messuage, situate &c., and all the appurtenances, hereditaments, easements and privileges thereto belonging or in any wise appertaining. That there is a dwelling house on the land, owned and occupied by the plaintiff.
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APPEAL from an order overruling a demurrer to the complaint. It" is.alleged in the complaint that the plaintiff is and was &c. the owner in fee simple, and was &c. and is in the possession of a certain piece or parcel of land, a garden and messuage, situate &c., and all the appurtenances, hereditaments, easements and privileges thereto belonging or in any wise appertaining. That there is a dwelling house on the land, owned and occupied by the plaintiff. That among the appurtenances, easements and privileges belonging to said premises, and owned by the plaintiff as aforesaid, is a private way…
1Opinion of the Court
By the Court, Marvin, J.
It is not always easy to determine, from the present pleadings, to what branch of the law the pleader intends to refer, for the redress of his client’s grievances. In the present case, however, there is no difficulty in determining that the facts stated in the complaint are not sufficient to show a cause of action entitling the plaintiff to the remedy given by the common law writ of nuisance, or an assize of nuisance. This writ at common law lay only in favor of one whose freehold was affected, and against one who erected the nuisance upon his freehold. Hence the…
2Cases cited2 opinions
- Brown v. WoodworthNew York Supreme Court · 1849
- Ellsworth v. PutnamNew York Supreme Court · 1852
3Cited by9 opinions
- Greene v. NunnemacherWisconsin Supreme Court · 1874
- Benson v. BatteySupreme Court of Kansas · 1904
- Hoffman v. WheelockWisconsin Supreme Court · 1885
- Adams v. StevensNew York Court of Common Pleas · 1894
- Tew v. WolfsohnNew York Supreme Court · 1902
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