Cook v. Stearns
Massachusetts Supreme Judicial Court
Trespass quart clausum fregit. The defendant, as to the break ing and entering the plaintiff’s close in the declaration mentioned, and digging up the soil thereof, pleads in bar that, long [ * 534 ] before the plaintiff had any thing in the said * close, viz., on the 1st of September, 1805, he, the said Stearns, was, and continually hitherto hath been, and still is, lawfully possessed of a certain other close, situate in, &c., and being near to the plaintiff’s close ; on…
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Trespass quart clausum fregit. The defendant, as to the break ing and entering the plaintiff’s close in the declaration mentioned, and digging up the soil thereof, pleads in bar that, long [ * 534 ] before the plaintiff had any thing in the said * close, viz., on the 1st of September, 1805, he, the said Stearns, was, and continually hitherto hath been, and still is, lawfully possessed of a certain other close, situate in, &c., and being near to the plaintiff’s close ; on which said other close of him, the said Steams, there had been theretofore erected a certain water-mill, and also part of a…
1Opinion of the Court
*480The opinion of the Court was delivered at this term by
Parker, C. J.
The question presented by the demurrer and joinder in this case is, whether the facts set forth in the plea in bar amount to a justification of the trespass complained of in the declaration.
The possession of the locus in quo is admitted to be in the plaintiff ; and no title to it is claimed by the defendant in his plea. But he claims a right to enter upon it, for the purpose of repairing the dam and bank, and clearing the canal from obstructions; because those, whose estate the plaintiff now holds, permitted him to enter and…
2Cases cited1 opinion
- Whitney v. HolmesMassachusetts Supreme Judicial Court · 1818
3Cited by104 opinions
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- Rust v. LowMassachusetts Supreme Judicial Court · 1809
- Rhodes v. OtisSupreme Court of Alabama · 1859
- Woodward v. SeelyIllinois Supreme Court · 1849
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