Dygert v. Schenck
New York Supreme Court
Error from the Montgomery common pleas. Dygert sued Schenck in a justice’s court, and declared against him in an action on the case, for an injury to a mare occasioned by her falling through a bridge which was out of repair, and which it was the duty of the defendant to have kept in repair. The plaintiff recovered in the justice’s court, and the defendant appealed.
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Error from the Montgomery common pleas. Dygert sued Schenck in a justice’s court, and declared against him in an action on the case, for an injury to a mare occasioned by her falling through a bridge which was out of repair, and which it was the duty of the defendant to have kept in repair. The plaintiff recovered in the justice’s court, and the defendant appealed. In the C. P. it appeared that about 1826, the defendant dug a race-way across a public road, to conduct water to his mill, and built a bridge across such race-way, which ever since has been used by the public as a part of the road.…
1Opinion of the CourtCowen, J.
By the Court, The evidence was clearly sufficient to go to the jury upon the question whether the injury arose from the cause alleged; and the nonsuit cannot be sustained, unless the obligation to keep the bridge in repair had devolved on the town.
The defendant certainly committed no (trespass in digging the ditch. It was on his own soil. The only right adverse to his was one to have a common highway for the purposes of travel. All the public could require was, that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial…
2Cases cited3 opinions
- Hart v. Mayor of AlbanyCourt for the Trial of Impeachments and Correction of Errors · 1832
- Heacock v. ShermanNew York Supreme Court · 1835
- Gidney v. EarlNew York Supreme Court · 1834
3Cited by10 opinions
- Wolf v. . KilpatrickNew York Court of Appeals · 1886
- Benton v. KernanNew Jersey Court of Chancery · 1940
- Wiggins v. TallmadgeNew York Supreme Court · 1851
- Cross v. Mayor of MorristownNew Jersey Court of Chancery · 1867
- Patten v. N. Y. Elevated RailroadNew York Court of Common Pleas · 1876
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