Wetmore v. Tracy
New York Supreme Court
Error from the Ontario common pleas. Tracy sued Wet-more and four others in a justice’s court, in an action of trespass for throwing down 100 rods of his fence, whereby cattle were let into his premises, and his wheat was destroyed. The defendants pleaded, 1. non cul., and 2. that the fence was a public nuisance, obstructing a public highway, and that the defendants removed it as a public nuisance, doing no unnecessary damage.
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Error from the Ontario common pleas. Tracy sued Wet-more and four others in a justice’s court, in an action of trespass for throwing down 100 rods of his fence, whereby cattle were let into his premises, and his wheat was destroyed. The defendants pleaded, 1. non cul., and 2. that the fence was a public nuisance, obstructing a public highway, and that the defendants removed it as a public nuisance, doing no unnecessary damage. The justice rendered judgment in favor of the plaintiff, for $50 damages. The defendants appealed to the Ontario common pleas. On the trial in that court the plaintiff…
1Opinion of the Court
By the Court,
Nelson, J.
The only question in the case is, whether the common law remedy for an encroachment upon a public highway has been taken away by the statute, 1 R. S. 521. That act provides, that in case of an encroachment by fences erected by any occupant of land through which a highway runs, the commissioners of highways shall, if deemed necessary, order such fences to be removed. Notice in writing is required to be given to the occupant to remove them within sixty days, and if not done within that time, a forfeiture of fifty cents for each day thereafter accrues. The occupant may, if…
2Cases cited3 opinions
- Hart v. Mayor of AlbanyCourt for the Trial of Impeachments and Correction of Errors · 1832
- Jackson v. BradtNew York Supreme Court · 1804
- Pennington v. TownsendNew York Supreme Court · 1831
3Cited by22 opinions
- Weimer v. BunburyMichigan Supreme Court · 1874
- People of the State of N.Y. v. . QuiggNew York Court of Appeals · 1874
- Hartford & New-Haven Rail Road v. KennedySupreme Court of Connecticut · 1838
- Selman v. WolfeTexas Supreme Court · 1863
- Harrower v. RitsonNew York Supreme Court · 1861
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