Decatur v. Walker
Massachusetts Supreme Judicial Court
Tort for breaking and entering the plaintiff’s close in Boston, and doing certain acts therein. The defendant justified under a right of way over the plaintiff’s land in his wife, Lydia A. Walker, as whose agent he acted.
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Tort for breaking and entering the plaintiff’s close in Boston, and doing certain acts therein. The defendant justified under a right of way over the plaintiff’s land in his wife, Lydia A. Walker, as whose agent he acted. Trial in the Superior Court, without a jury, before Staples, J., who found that the defendant’s wife had such right of way, under which he could justify ; found and ordered judgment for the defendant; and reported the case for the determination of this court. The facts appear in the opinion.
1Opinion of the CourtHolmes, J.
The plaintiff and the defendant’s wife, Lydia, under whom the defendant justifies, both derive title from Cyrus Decatur. On March 31, 1873, Decatur mortgaged the alleged dominant estate to Lydia, describing one boundary line as running “to a passageway to be made.” There was some evidence that the passageway thus referred to was identified, and that it ran over the grantor’s land in the course adopted by the defendant at the time of his alleged trespass. If the way was identified by mutual agreement at the time, or even after the conveyance, it stood on the same footing as if it had been…
2Cases cited2 opinions
- Chandler v. Jamaica Pond Aqueduct Corp.Massachusetts Supreme Judicial Court · 1878
- George v. CoxMassachusetts Supreme Judicial Court · 1874
3Cited by4 opinions
- Lipsky v. HellerMassachusetts Supreme Judicial Court · 1908
- Ralph v. CliffordMassachusetts Supreme Judicial Court · 1916
- McCruden v. Rochester Railway Co.New York Supreme Court · 1893
- O'Brien v. GoodrichMassachusetts Supreme Judicial Court · 1900