Miller v. Garlock
New York Supreme Court
This cause was tried at the Montgomery circuit, by the court; a trial by jury having been waived by the parties. The action was for entering the plaintiff’s close, and' breaking and destroying his fences.
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This cause was tried at the Montgomery circuit, by the court; a trial by jury having been waived by the parties. The action was for entering the plaintiff’s close, and' breaking and destroying his fences. The defendant set up in his answer, in justification, that he was entitled to a right of way over the plaintiff’s land, and that the fences referred to in the complaint were erected across the road, by the plaintiff, and that the defendant removed them as an obstruction in the road. It appeared by the evidence that in 1800 Samuel Clark owned the farm now owned by the defendant, which adjoins…
1Opinion of the Court
■By the Court, Paige, J.
A right of private way may arise either by prescription, or grant of the owner of the soil, or from necessity. (3 Kent's Com. 419. 2 Hil. Ab. 60.) A prescription rests upon the supposition of a grant. It is founded on the immemorial use of the way by the claimant and his ancestors, or by those whose estate he hath, which last is called prescribing in a que estate. Immemorial use is a use time out of mind, or from a time whereof the memory of man is not to the contrary. (3 Black. Com. 264, Chit. ed. and note 3.) Time out of mind, or legal memory, in England, under the…
2Cases cited5 opinions
- Gayetty v. BethuneMassachusetts Supreme Judicial Court · 1817
- McCoy v. CurticeNew York Supreme Court · 1832
- Hoffman v. SavageMassachusetts Supreme Judicial Court · 1818
- Hazard v. RobinsonU.S. Circuit Court for the District of Rhode Island · 1823
- Humbert v. Rector of Trinity ChurchCourt for the Trial of Impeachments and Correction of Errors · 1840
3Cited by32 opinions
- Rogerson v. ShepherdWest Virginia Supreme Court · 1889
- Colburn v. MarshNew York Supreme Court · 1893
- Concklin v. New York Central & Hudson River RailroadAppellate Division of the Supreme Court of the State of New York · 1912
- Wilkins v. NicolaiWisconsin Supreme Court · 1898
- Hatton v. Kansas City, Clinton & Springfield Railway Co.Supreme Court of Missouri · 1913
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