Clark v. Storrs
New York Supreme Court
Demurrer by the defendant to the plaintiff’s declaration in an action of nuisance, under 2 R. S. 332. The declaration set out the plaintiff’s title to the freehold of a certain lot, in the village of Canton, in the county of St. Lawrence, describing it by metes and bounds, by virtue of a warranty deed from Joseph and John L. Barnes, and which deed conveyed also “ the right of way to the rear of said premises,” [viz. the lot conveyed,] “ for ingress and egress with teams,…
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Demurrer by the defendant to the plaintiff’s declaration in an action of nuisance, under 2 R. S. 332. The declaration set out the plaintiff’s title to the freehold of a certain lot, in the village of Canton, in the county of St. Lawrence, describing it by metes and bounds, by virtue of a warranty deed from Joseph and John L. Barnes, and which deed conveyed also “ the right of way to the rear of said premises,” [viz. the lot conveyed,] “ for ingress and egress with teams, from Courthouse-street.” The complaint was that the defendant in October, 1846, erected a house upon the land, over which…
1Opinion of the Court
By the Court, Willard, J.
I perceive no reason for the first objection, and the second is not supported by the facts. The third, therefore, is the one to which our attention should be directed. The conclusion of the declaration is not supported by the premises. The erection of a house on land over which a way passes, is not necessarily a nuisance to the freehold to which the road leads. It is not asserted that the erection was made upon the way itself It is merely alleged that it was made upon the land, over which the right of way was appurtenant. The way may still be left open, and the…
2Cited by2 opinions
- Ellsworth v. PutnamNew York Supreme Court · 1852
- Hadcock v. City of GloversvilleAppellate Division of the Supreme Court of the State of New York · 1904