Campbell v. Race
Massachusetts Supreme Judicial Court
This was an action of trespass for breaking and entering the plaintiff’s close in the town of Mount Washington, arid was tried in the court of common pleas, before Byington, J. The defendant pleaded the general issue, and specified in defence a right of way of necessity, resulting from the impassable state of the adjoining highway, by obstructions with snow.
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This was an action of trespass for breaking and entering the plaintiff’s close in the town of Mount Washington, arid was tried in the court of common pleas, before Byington, J. The defendant pleaded the general issue, and specified in defence a right of way of necessity, resulting from the impassable state of the adjoining highway, by obstructions with snow. The defendant introduced evidence that at the time when the trespass was alleged to have been committed he was travelling with his team on a highway running east and west, which led to and intersected a highway running north and south,…
1Opinion of the Court
The opinion was delivered at September term, 1852.
Bigelow, J.
It is not controverted by the counsel for the plaintiff, that the rule of law is well settled in England, that where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining lands, without being guilty of trespass. The rule is so laid down in the elementary books. 2 Bl. Com. 36 ; Woolrych on Ways, 50, 51; 3 Cruise Dig. 89; Wellbeloved on Ways, 38; and it is fully supported by the adjudged cases. Henris Case, W. Jones, 296; 3 Salk. 182; 1 Saund. 323, note 3; Absor v.…
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