McCarthy v. Whalen
New York Supreme Court
Appeal from a judgment in favor of the plaintiff entered on the report of a referee. The action was for trespass quare clausum fregit. The defendant in his answer alleged that the locus in quo was a public highway and justified as commissioner of highways. The only question litigated was as to the existence of the alleged highway. The action was commenced originally in a justice’s court and was discontinued there on title being pleaded.
1Opinion of the Court
Smith, J.:
The alleged highway started in a westerly course from what is known as the “ five mile line,” in the town of Penfield, and extended by various courses a mile and 138 rods, crossing a farm owned and occupied by the plaintiff:
The referee, in his original report, aid not find whether the road was lawfully laid out, but he found certain facts bearing upon that question, which will be referred to presently. Subsequently, on being requested by the plaintiff’s counsel to find as matter of law that the road was lawfully laid out, he declined to End as requested, except as stated in his…
2Cases cited4 opinions
- Marble v. . WhitneyNew York Court of Appeals · 1863
- Gould v. GlassNew York Supreme Court · 1855
- People Ex Rel. Aspinwall v. Supervisors of Richmond CountyNew York Court of Appeals · 1859
- Van Bergen v. . BradleyNew York Court of Appeals · 1867