Gidney v. Earl
New York Supreme Court
Error from the Saratoga common pleas. Gidney sued Earl in a justice’s court in an action of trespass, for digging up and removing the soil from a highway passing through the land of the plaintiff. It was admitted that the plaintiff owned and occupied the land, opposite to which the soil was taken, on both sides of the road, except a burying ground on the south side of the road. The soil was taken from the north side of the road and deposited in the defendant’s garden.
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Error from the Saratoga common pleas. Gidney sued Earl in a justice’s court in an action of trespass, for digging up and removing the soil from a highway passing through the land of the plaintiff. It was admitted that the plaintiff owned and occupied the land, opposite to which the soil was taken, on both sides of the road, except a burying ground on the south side of the road. The soil was taken from the north side of the road and deposited in the defendant’s garden. It was objected by the defendant that the fact of the plaintiff owning the lands opposite the highway, did not prove title in…
1Opinion of the Court
By the Court,
Nelson, J.
The public highways in this state were generally laid out and opened according to the provisions of some statute law existing at the time. Prescription, or use of twenty years or more of a road, gives to the public a right to the enjoyment of it for that purpose in some cases. The right of way, public or private, is but an incorporeal hereditament, an easement which, per se, does not divest the the owner of the fee of the land; and for every other purpose except the use or servitude as a public highway, the soil belongs to him, and he is entitled to the same remedies…
2Cited by22 opinions
- Kripp v. CurtisCalifornia Supreme Court · 1886
- Adams v. RiversNew York Supreme Court · 1851
- Bloomfield & Rochester Natural Gas-Light Co. v. CalkinsNew York Court of Appeals · 1875
- Adams v. Saratoga & Washington RailroadNew York Supreme Court · 1851
- Wetmore v. StoryNew York Supreme Court · 1856
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