Talmage v. Huntting
New York Court of Appeals
Appeal from the Supreme Court. The action was brought to recover several penalties alleged to have been incurred by the defendant in refusing to remove a fence erected by him, which was claimed by the plaintiffs to be an encroachment upon the principal road or highway in the village of East Hampton, in the county of Suffolk.
Read the full summary
Appeal from the Supreme Court. The action was brought to recover several penalties alleged to have been incurred by the defendant in refusing to remove a fence erected by him, which was claimed by the plaintiffs to be an encroachment upon the principal road or highway in the village of East Hampton, in the county of Suffolk. The penalty is given by the “ Act regulating highways and bridges in the counties of Suffolk, Kings, and Queens,” usually called the Long Island road act. (Laws of 1830, chap. 56.) The eighty-fifth section declares that “ in every case where a highway has been, or shall…
1Opinion of the CourtJohnson, J.
There was no legal evidence of any encroachment by the defendant upon the street or Mghway m question. It was not originally a laid out highway, but had become a highway by having been used as. such for over twenty years preceding the 21st of March, 1797. It must be quite obvious to every one, that before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertamed and determined in some mode prescribed by law. The jury wMch is called to determine the disputed ques*452tian of an encroachment, has no power to determine the question of the…
2Cases cited1 opinion
- Doughty v. BrillNew York Supreme Court · 1862
3Cited by4 opinions
- Nabring v. Bank of MobileSupreme Court of Alabama · 1877
- Mott v. Newark German HospitalNew Jersey Court of Chancery · 1897
- Muller v. PondirNew York Supreme Court · 1872
- Rumery v. BrooksAppellate Division of the Supreme Court of the State of New York · 1923