Marble v. . Whitney
New York Court of Appeals
Appeal from a judgment of the.Supreme Court. The" action was for entering on the close of the plaintiff and throwing down and removing his fences. The defendant answered, denying the complaint, and alleging that the premises mentioned was a public highway, and that the defendant was the commissioner of highways, and as such entered thereon to remove obstructions and encroachments.
Read the full summary
Appeal from a judgment of the.Supreme Court. The" action was for entering on the close of the plaintiff and throwing down and removing his fences. The defendant answered, denying the complaint, and alleging that the premises mentioned was a public highway, and that the defendant was the commissioner of highways, and as such entered thereon to remove obstructions and encroachments. The plaintiff denied that such alleged highway was ever legally laid out or legally opened, and the principal question in this case is, was the alleged road a lawful public highway ? The cause was referred to a…
1Opinion of the CourtWright, J.
If the locus in quo was a public highway, the defendant, as commissioner of highways, was justified in the entry complained of, and in the removal of the plaintiff’s fences. The referee decided that it was not a highway, at the time of the entry, it not having been legally laid out, or legally opened; that the consent of the plaintiff to its alteration, in 1855, (some two years before suit brought,) was a mere licence, which the plaintiff could revoke after the alteration was made; and that such consent having been given under a mistake or misapprehension of facts, the alteration made by the…
2Cases cited2 opinions
- Gould v. GlassNew York Supreme Court · 1855
- People Ex Rel. Aspinwall v. Supervisors of Richmond CountyNew York Court of Appeals · 1859
3Cited by18 opinions
- Burkam v. Ohio & Mississippi Railway Co.Indiana Supreme Court · 1890
- Beckwith v. . WhalenNew York Court of Appeals · 1875
- Beckwith v. . WhalenNew York Court of Appeals · 1877
- People Ex Rel. Bowen v. . JonesNew York Court of Appeals · 1875
- People ex rel. De Groat v. MarlettNew York Supreme Court · 1903
13 more not listed; retrieve them via the Exa API.