Wilson v. Smith
New York Supreme Court
This action was tried at the Livingston circuit in October, 1830, before the Hon. Addison Gardiner, one of the circuit judges.
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This action was tried at the Livingston circuit in October, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff declared in case, setting forth in his declaration an act of the legislature, authorizing him to erect a dam across the Genesee river in a certain specified manner, at a certain place, and that he erected the dam according to the provisions of the act; that he was in the possession and occupancy of a saw-mill supplied with waterfront such dam, and that the defendants, well knowing the premises, with an intent to injure and aggrieve him, on, &c. at, &c.…
1Opinion of the Court
*327 By the Court,
Sutherland, J.
The action in this case should have been trespass, and not trespass on the case. The ground oil which the form of the action was endeavored to be maintained at the trial, and also upon the argument at bar, was, that the right to erect the dam, for an injury to which the action was brought, was a franchise, an incorporeal hereditament ; and that for an injury to property, or right of that description, trespass will not lie. The principle here adverted to, does not apply to the case. The right to erect the dam is a franchise; it is conferred by the legislature, the…
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- Boston Water Power Co. v. Boston & Worcester RailroadMassachusetts Supreme Judicial Court · 1835
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