Fulton v. Monahan
Ohio Supreme Court
This was an. action of trespass, guare clausum firegit, and was reserved from the county of Muskingum. The defendant justified, under the act of Congress, passed May 15, 1820, and March 3, 1825, establishing a National road through the State ot Ohio, and, in his plea of justification, alleged, that the National road had been laid out, near the close in which, etc.; and that, in the construction of said road, it was necessary to make use of certain limestone, within the close…
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This was an. action of trespass, guare clausum firegit, and was reserved from the county of Muskingum. The defendant justified, under the act of Congress, passed May 15, 1820, and March 3, 1825, establishing a National road through the State ot Ohio, and, in his plea of justification, alleged, that the National road had been laid out, near the close in which, etc.; and that, in the construction of said road, it was necessary to make use of certain limestone, within the close in which, etc.; and that the defendant, as the servant, and under the direction and authority of the government of the…
1Opinion of the Court
By the Court :
The plea does not set forth, with sufficient certainty, the authority under which the defendant professes to have acted. The government necessarily acts by its officers ; and whenever an individual undertakes to justify a trespass, under the authority of government, that authority must bo traced to some officer of the government, known and recognized by law as such.
*The defendant, however, in this ease seems to have rested his defense principally upon the grounds that the National road had boon located near the plaintiff’s close, and that stone were necessary in the construction…
2Cited by1 opinion
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