Durgin v. Leighton
Massachusetts Supreme Judicial Court
This was a review of an action of trespass, in which the plaintiffs in review were original defendants, and the defendant in review original plaintiff.
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This was a review of an action of trespass, in which the plaintiffs in review were original defendants, and the defendant in review original plaintiff. The declaration alleged that the defendants, with force and arms, broke and entered the plaintiff’s close in Shapleigh, and “ cut down, tore away, and destroyed, the plaintiff’s mill-dam, then and there being and standing across Ossipee River, and let out the water of the pond above said dam; whereby the plaintiff’s timber, stones, gravel, and other materials for another dam below said dam, were wholly swept away and destroyed.” The action was…
1Opinion of the Court
Curia.
The dam destroyed was a mill-dam, although, as erected for a temporary purpose, it had obtained the distinguishing name of the false dam. There is no question as to the identity of the close. The evidence was sufficient for the jury to apply it to the dam actually injured. Even in a question arising upon written evidence, this equivocal use of a proper name would not be regarded as a misnomer, or as a material variance between the averments of the declaration, and the evidence adduced to maintain the action ; and the supposed variance is altogether immaterial, and still less to be…
2Cases cited6 opinions
- Miner v. ClarkNew York Supreme Court · 1836
- Crane v. DygertNew York Supreme Court · 1830
- Maus v. MausSupreme Court of Pennsylvania · 1840
- Hinman v. BoothNew York Supreme Court · 1839
- Eichelberger v. SmyserSupreme Court of Pennsylvania · 1839
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Johnson v. StoddardMassachusetts Supreme Judicial Court · 1941
- Palmer v. TuttleSupreme Court of New Hampshire · 1859
- Fraser v. HunterU.S. Circuit Court for the District of District of Columbia · 1838