Fletcher v. Auburn & Syracuse Rail Road
New York Supreme Court
Demurrer to pleas. The plaintiff, in his declaration complains that being possessed of a messuage and garden, adjoining a street called Garden street, in the town of Auburn, in the county of Cayuga, the defendants caused to be constructed an embankment of the height of four feet upon and across Garden street, near his messuage and garden ; by means whereof he cannot have and enjoy his right of free and unobstructed passage unto and upon the street to and from his messuage…
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Demurrer to pleas. The plaintiff, in his declaration complains that being possessed of a messuage and garden, adjoining a street called Garden street, in the town of Auburn, in the county of Cayuga, the defendants caused to be constructed an embankment of the height of four feet upon and across Garden street, near his messuage and garden ; by means whereof he cannot have and enjoy his right of free and unobstructed passage unto and upon the street to and from his messuage and garden; and is deprived of the use, benefit and advantage of the street; and besides, his messuage is, by reason of…
1Opinion of the Court
By the Court,
Nelson, C. J.
It is quite obvious, from the language of the charter of the defendants, and of the act of 1835, Statutes of 1834, p. 410, and of 1835, p. 340, that the power conferred upon the company to enter upon and occupy a public highway, in laying the track of their road, relates only to the public property in the road ; to the public use and enjoyment of it, without intending to interfere with any private or individual interests that might be concerned. Hence the legislature guard only against any obstruction of the common use. The road is to be restored to its former state,…
2Cited by51 opinions
- Radcliff's Executors v. . Mayor, C. of BrooklynNew York Court of Appeals · 1850
- Uline v. . N.Y.C. H.R.R.R. Co.New York Court of Appeals · 1886
- Davis v. . the Mayor, C., of New-YorkNew York Court of Appeals · 1856
- Bellinger v. . the New York Central RailroadNew York Court of Appeals · 1861
- Craig v. . Rochester City Brighton R.R. Co.New York Court of Appeals · 1868
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