Flora v. . Carbean
New York Court of Appeals
The action was brought originally in a Justice’s Court by the Plaintiff, for damages for the cutting down and removing his fence. The answer of the Defendant creating an issue which involved the title to real estate, the action was removed to the Supreme Court. The defence was a justification as the servant of the Defendant’s father, who had, as it was alleged, a right of way across the Plaintiff’s land, at the place where the Plaintiff had built the fence.
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The action was brought originally in a Justice’s Court by the Plaintiff, for damages for the cutting down and removing his fence. The answer of the Defendant creating an issue which involved the title to real estate, the action was removed to the Supreme Court. The defence was a justification as the servant of the Defendant’s father, who had, as it was alleged, a right of way across the Plaintiff’s land, at the place where the Plaintiff had built the fence. The action was tried before a referee, who found that the land of the Plaintiff was wild land until about twelve years before the alleged…
1Opinion of the CourtWoodruff, J.
The referee states, as a conclusion of law, “that the Defendant had acquired a right of private way across the Plaintiff’s lot; ” and the conclusion followed, that he was justified in the act complained of as a trespass. By this was meant that the father of the Defendant, under whose authority and as whose servant he justified, had such right of way.
The referee finds a use of this way by the Defendant’s father for more than twenty years. He does not find how the use began, or whether there was a grant thereof to him, or to any one under whom he claims, nor whether the use was adverse, nor…
2Cases cited4 opinions
- Planters' Bank v. SharpSupreme Court of the United States · 1848
- Parker & Edgarton v. FooteNew York Supreme Court · 1838
- Gayetty v. BethuneMassachusetts Supreme Judicial Court · 1817
- Colvin v. BurnetNew York Supreme Court · 1837
3Cited by34 opinions
- In Re the Estate of FindlayNew York Court of Appeals · 1930
- Crane v. . PowellNew York Court of Appeals · 1893
- Lewis v. . New York Harlem R.R. Co.New York Court of Appeals · 1900
- Hinkley v. . State of New YorkNew York Court of Appeals · 1922
- Benner v. Atlantic Dredging Co.New York Court of Appeals · 1892
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