Legal Opinion

Tracy v. Atherton

Supreme Court of Vermont

Decided January 15, 1862PublishedCited by 16 opinions

This was an action of trespass gu. cl. The defendants pleaded in justification a right of way of necessity from the close occupied by them, over the plaintiff’s close, to the public highway ; the plaintiff’s close lying between theirs and said highway ; averring that at none of the said several times when, &c., could the defendants have access to their said close from said highway, or egress from their said close to said highway, or to any other highway or public place,…

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This was an action of trespass gu. cl. The defendants pleaded in justification a right of way of necessity from the close occupied by them, over the plaintiff’s close, to the public highway ; the plaintiff’s close lying between theirs and said highway ; averring that at none of the said several times when, &c., could the defendants have access to their said close from said highway, or egress from their said close to said highway, or to any other highway or public place, except' over and across the close of the plaintiff, without going a greater and more inconvenient and an unnecessary…

1Opinion of the CourtBarrett, J.

The plea justifies the alleged trespass, on the ground of a right in the defendants of a way of necessity, a right created by the necessity, and in no manner derived from grant, reservation, or prescription. The cases are numerous in which a way of necessity, as it is called, has been upheld ; but in most instances, it has been on the ground of a grant or- reservation implied from the necessity. There, are some cases in which the *53reason assigned for the decision seems to favor the idea that a right of way may be created by the necessity, irrespective and independent of any grant or…

2Cases cited3 opinions

  1. Collins v. PrenticeSupreme Court of Connecticut · 1842
  2. Pierce v. SelleckSupreme Court of Connecticut · 1847
  3. Collins v. PrenticeSupreme Court of Connecticut · 1843

3Cited by16 opinions

  1. Powers v. HarlowMichigan Supreme Court · 1884
  2. Brasington v. WilliamsSupreme Court of South Carolina · 1927
  3. Traders, Inc. v. BartholomewSupreme Court of Vermont · 1983
  4. Hinckley v. Schwarzschild & Sulzberger Co.Appellate Division of the Supreme Court of the State of New York · 1905
  5. Goodall v. GodfreySupreme Court of Vermont · 1880

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